Church of Scientology of California, Inc. v. Green, 69 Civ. 5745.

• Decision Date: 09 February 1973
• Docket Number: No. 69 Civ. 5745.,69 Civ. 5745.
• Citation: 354 F. Supp. 800
• Parties: CHURCH OF SCIENTOLOGY OF CALIFORNIA, INC., Plaintiff, v. Bernard GREEN and Barbara Green, Defendants.
• Court: U.S. District Court — Southern District of New York

354 F. Supp. 800

CHURCH OF SCIENTOLOGY OF CALIFORNIA, INC., Plaintiff, v. Bernard GREEN and Barbara Green, Defendants.

No. 69 Civ. 5745.

United States District Court, S. D. New York.

February 9, 1973.

Silk, Slonim & Young, New York City, for plaintiff; Howard Slonim, New York City, Joel Kreiner, Los Angeles, Cal., of counsel.

John J. Seffern, New York City, for defendants.

LEVET, District Judge.

The present action, by way of a counterclaim, is for libel brought by defendants Bernard Green and Barbara Green against plaintiff The Church of Scientology of California, Inc. (sometimes referred to as "the Church"). One of the original claims of the Church sought to enjoin the Greens from holding themselves out as "bona fide" ministers of the Church. All claims of the Church have been withdrawn.

Although the case has been completely tried, the sole issue for determination presently before this court is whether there was publication of the alleged libelous statement. Obviously, if there is no publication then there is no libel. Other issues, although tried, have been deferred pending a decision on this limited issue.

After hearing the testimony of the parties, examining the exhibits, the pleadings, the Proposed Findings of Fact and Conclusions of Law with respect to the issue of publication, this court makes the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

1. This court has jurisdiction over the subject matter of the litigation and the parties hereto.

2. The Church of Scientology of California, Inc. is a non-profit corporation, incorporated under the laws of the State of California, with its principal place of business in Los Angeles, California.¹ (288²; Ex. 6.)

3. Bernard Green and Barbara Green reside at 685 West End Avenue, New York, New York, and are presently operating from that address an unincorporated association known as the "International Awareness Center."

Bernard Green became a member of Scientology in 1953 and received training for several years thereafter. He held a "franchise" of the Church of Scientology and was operating said franchise in 1969. In such a capacity he conducted spiritual counseling. (17-34, 38-43, 69.)

Barbara Ferraro married Bernard Green in 1968 and together they operated the Scientology franchise. (170-171.)

On or about November 20, 1969 the Scientology franchise held by the Greens was cancelled by a notice from the Church of Scientology of New York. (123-124; Ex. 3.)

4. On December 10, 1969 a document from the Church bearing the heading, "Writ of Expulsion," was received by Bernard Green in the mail. The document, dated December 3, 1969, contained the alleged libelous statement:

"1. Further evidence found indicts Bernard Green of attempted blackmail of parishioners he has counseled." (50-52; Ex. B.)³

Clarice Jackson, an Ethics Officer and member of the Church of Scientology of California, authored the writ which was sent to Bernard Green. After the formulation of the writ Jackson personally carried it to Fred Hare and Hanna Eltringham, officers of the Church, for their approval. The names of Jackson, Hare and Eltringham appear on the writ (Ex. B) as co-originators. Jackson then typed the original handwritten draft onto a stencil. Two copies of the stencil were then mimeographed, in Jackson's presence, by one James Isaacson. Isaacson was a L. Ron Hubbard (LRH),⁴ Communicator, whose duties were "to watch the organization, that it was running correctly, that it was following the prescribed policy . . . and that the ethics decisions that came down were done correctly . . ." (374.) In such a capacity Isaacson was responsible for mimeographing ethic orders such as the writ sent to Bernard Green. (325-326, 374-375; Ex. B.)

Clarice Jackson mailed one copy of the writ to Bernard Green and placed the other copy in the locked files of the Church. (339-342.)

The original writ prepared by Clarice Jackson differed from the letters or copies of the writ claimed by the Greens to have been received by other members of the Church (Ex. B) in three respects:

(A) It did not have a border of approximately two inches from the top and bottom edges of the paper;

(B) There were no initials on the original prepared by Jackson as found in the lower left corner of Exhibit B;

(C) The writ, when mailed by Jackson, was placed in a white envelope and folded in thirds. There is no indication on Exhibit B, the writ received by Bernard Green, that it had been folded.

6. Bernard Green's allegation of publication by the Church is not supported by the credible evidence.

Green contends that there was publication of the writ when it was mailed in California and received in New York by Barbara Green, Michael Gerson, Michael Kates, Frank Catricola and Allan Ferguson.

(A) Barbara Green testified that she first saw a copy of the writ when her husband showed it to her. (159-160.) This, obviously, is not a publication on which a libel action can be based since Bernard Green himself "published" it.

(B) Michael Gerson, who had received counseling from Bernard Green in 1969, testified that he received a copy of the writ on October 4, 1969. Gerson said the letter came in a business envelope and that it was folded in thirds. (148-149.) Furthermore, he had no definite recollection from whom or from which branch of the Church of Scientology, if any (California or New York), the letter came. (241-243.)

(C) Michael Kates, who received counseling from Bernard Green, testified that he received a copy of the writ in the mail in December of 1969. He also conceded that he did not know where the writ came from. (233-242.)

(D) Frank Catricola, who received counseling from Bernard Green, testified that he received a copy of the writ on or about December 15 or 16, 1969. He did not testify as to where the writ came from. (273-276.)

(E) Allan Ferguson, the Executive Secretary World Wide for Scientology and a member of the Executive Council, working in England in 1969, testified that he saw a copy of the writ in the course of his official duties in December 1969. Ferguson said that the writ was brought to him by executive officers either Roger Wright, a LRH Communicator, or by Jane Kember, who was the Deputy Guardian or Guardian World Wide of the Church of Scientology. Ferguson passed the copy of the writ on to Hubbard "wherever he might have been." (259-261.) Ferguson had a duty to see the writ. Accordingly, there was no publication.

I find that publication of the alleged libelous writ has not been shown through any of the aforementioned witnesses.

In summary, I find that there was no publication of the alleged libelous statement.

DISCUSSION

Bernard and Barbara⁵ Green bring this action for libel against the Church of Scientology of California, Inc.

The basic choice-of-law question requires no extended discussion. What law applies, New York or California? In such cases as this, founded upon diversity of citizenship, a federal district court applies the substantive law of the state wherein it sits, including the rules of conflict of law prevailing in that state. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Jaftex Corp. v. Randolph Mills, Inc., 282 F.2d 508 (2d Cir. 1960). New York's rule of conflict of law, therefore, furnishes the guide. It plainly provides that the substantive law applicable to an alleged tort is "the place which has the most significant relationship with the subject matter of the tort charged." Nader v. General Motors Corp., 25 N.Y.2d 560, 307 N.Y.S.2d 647, 255 N.E.2d 765 (1970). See also Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963). Accordingly, the substantive law of New York governs. Bernard Green is a citizen of the State of New York. Receipt of the alleged libelous statement by Bernard Green took place in New York. Alleged publication, in all but one instance (i. e., Ferguson) took place in New York. New York thus has the greatest interest in the outcome of the litigation.

The only substantive issue presently before this court for determination is whether or not there was publication of the alleged libelous statement.

On December 10, 1969 a "Writ of Expulsion" (Ex. B) was received in the mail by Bernard Green from the Church. The writ or letter contained the alleged libelous statement:

"Further evidence found indicts Bernard Green of attempted blackmail of parishioners he has counseled." (Ex. B.)

It is elementary that there can be no libel, regardless of the nature of the statement, unless there is publication. Mere receipt of an alleged libelous statement by the one claiming to be defamed does not establish libel.

Law in the field of defamation has changed considerably in a short span of time. However, an enunciation of Judge Cardozo in Ostrowe v. Lee, 256 N.Y. 36, 175 N.E. 505 (1931) is "as good as new":

"In the law of defamation, `publication' is a term of art. . . . A defamatory writing is not published if it is read by no one but the one defamed. Published, it is, however, as soon as read by any one else. Citations omitted." (At p. 38, 175 N.E. at p. 505.)

Furthermore, there is no publication if the defamatory statement is exposed to a third party by the person claiming to be defamed. Horovitz v. Weidenmiller, 53 N.Y.S.2d 379 (S.Ct. N.Y.1945); Shepard v. Lamphier, 84 Misc. 498, 146 N.Y.S. 745 (1914); Galligan v. Kelly, 31 N.Y.S. 561 (Sup. 1894).

The evidence unequivocally establishes that the Church issued only two "original" Writs of Expulsion. One writ was mailed to Bernard Green in New York, while the other was maintained in the locked files of the Church.

Clarice Jackson, an Ethics Officer of the Church, charged with the responsibility of issuing such writs, drew up the writ in question. She had the writ cosigned, as required by the rules and regulations of the Church, and then personally drew up the stencil for the two "original" mimeographed documents. Furthermore, the...