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 District of Columbia Circuit.
Argued Nov. 5, 1968.
Decided Feb. 5, 1969, Petition for Rehearing Denied April 18, 1969.
Proceeding on libel of information filed by United States, attorney for
condemnation of device and accompanying false or misleading labeling. The
United States District Court for the District of Columbia, John J. Sirica, J.,
entered a judgment in favor of the government and the claimant appealed. The
Court of Appeals, J. Skelly Wright, Circuit Judge, held that where incorporated
church, whose ministers were qualified to perform marriages and burials, made
out an unrebutted prima facie case that it was a bona fide religion, its
literature setting forth religious doctrines and referring to instrument used
in auditing procedures which played a central part in religious doctrine did
not constitute 'labeling' within Federal Food, Drug, and Cosmetic Act rendering
device with accompanying false and misleading labeling subject to condemnation.
Reversed.
McGowan, Circuit Judge, dissented.
[1] SEARCHES AND SEIZURES
Purpose of warrant clause of Fourth Amendment is to interpose relatively
detached and independent decision maker between privacy of individual and the
otherwise unchecked zeal of enforcement officials. U.S.C.A.Const. Amend. 4.
[2] ADMIRALTY
In case of ordinary civil attachments, details of such proceedings are, even in
federal courts, left to state law, and in cases in admiralty the process is
governed by Admiralty Rules. Fed.Rules Civ.Proc. rule 64, 28 U.S.C.A.;
Supplemental Rules for Certain Admiralty and Maritime Claims, rules B, C, 28
U.S.C.A.
[2] FEDERAL CIVIL PROCEDURE
In case of ordinary civil attachments, details of such proceedings are, even in
federal courts, left to state law, and in cases in admiralty the process is
governed by Admiralty Rules. Fed.Rules Civ.Proc. rule 64, 28 U.S.C.A.;
Supplemental Rules for Certain Admiralty and Maritime Claims, rules B, C, 28
U.S.C.A.
[3] SEARCHES AND SEIZURES
Where libel of information filed by United States Attorney particularly
described items to be seized and gave a reasonably particular account of
respects in which items were thought to contravene Food, Drug, and Cosmetic
Act, libel was subject to scrutiny by federal district judge and it was only
after his review and by court order that warrant was issued for seizure, all
requirements interposed by Fourth Amendment had been complied with and the
seizure was reasonable. Federal Food, Drug, and Cosmetic Act, s 304(a, b),
21 U.S.C.A. s 334(a, b); U.S.C.A.Const. Amend. 4.
[4] SEARCHES AND SEIZURES
Inspections of premises open to general public are not illegal searches.
U.S.C.A.Const. Amend. 4.
[5] CONSTITUTIONAL LAW
First Amendment does not protect from regulation or prohibition all bona fide
religious practices, but rather embraces two concepts: freedom to believe and
freedom to act; and while the first is absolute, in the nature of things the
second cannot be and conduct remains subject to regulation for protection of
society. U.S.C.A.Const. Amend. 1.
[6] CONSTITUTIONAL LAW
Legal restrictions cannot be applied to religious practices merely on showing
of rational relationship between regulation imposed and legitimate end
sought. U.S.C.A.Const. Amend. 1.
[7] CONSTITUTIONAL LAW
Freedoms of speech and of press, of assembly and of worship are susceptible of
restriction only to prevent grave and immediate danger to interests which state
may lawfully protect. U.S.C.A.Const. Amend. 1.
[7] CONSTITUTIONAL LAW
Freedoms of speech and of press, of assembly and of worship are susceptible of
restriction only to prevent grave and immediate danger to interests which state
may lawfully protect. U.S.C.A.Const. Amend. 1.
[7] CONSTITUTIONAL LAW
Freedoms of speech and of press, of assembly and of worship are susceptible of
restriction only to prevent grave and immediate danger to interests which state
may lawfully protect. U.S.C.A.Const. Amend. 1.
[8] DRUGS AND NARCOTICS
In determining whether literature "accompanies" a device within meaning of
Federal Food, Drug, and Cosmetic Act authorizing seizure of misbranded device,
literature need not be shipped together with device but must be designed for
use in distribution and sale of device, and the two must be parts of an
integrated distribution system. Federal Food, Drug, and Cosmetic Act, ss 1
et seq., 201(b, m), 304(a), 502, 21 U.S.C.A. ss 301 et seq.,
321(b, m), 334(a), 352; U.S.C.A.Const. Amends. 1, 4.
See publication Words and Phrases for other judicial constructions and
definitions.
[9] DRUGS AND NARCOTICS
Where incorporated church, whose ministers were qualified to perform marriages
and burials, had made out an unrebutted prima facie case that it was a bona
fide religion, its literature setting forth religious doctrines and referring
to instrument used in auditing procedures which played a central part in
religious doctrine did not constitute "labeling" within Federal Food, Drug,
and Cosmetic Act rendering device with accompanying false and misleading
labeling subject to condemnation. Federal Food, Drug, and Cosmetic Act,
ss 1 et seq., 201(b, m), 304(a), 502, 21 U.S.C.A. ss 301 et
seq., 321(b, m), 334(a), 352; U.S.C.A.Const. Amends. 1, 4.
See publication Words and Phrases for other judicial constructions and
definitions.
[10] CONSTITUTIONAL LAW
Failure of incorporated church, whose ministers were licensed as such with
legal authority to marry and to bury and which had fundamental writings
containing general account of man and his nature comparable in scope, if not in
content, to those of some recognized religions, to postulate a deity in
conventional sense did not preclude its status as a religion within protection
of First Amendment. U.S.C.A.Const. Amend. 1.
[11] CONSTITUTIONAL LAW
Theories of church, which had made a prima facie showing of being a bona fide
religion, as expounded in its literature were protected by First Amendment from
court room evaluation as to truth or falsity in suit by government to condemn
instrument under Federal Food, Drug, and Cosmetic Act on theory that literature
expounding the theories constituted false and misleading labeling of the
devices. Federal Food, Drug, and Cosmetic Act, ss 1 et seq., 201(b, m),
304(a), 502, 21 U.S.C.A. ss 301 et seq., 321(b, m), 334(a),
352; U.S.C.A.Const. Amends. 1, 4.
[12] DRUGS AND NARCOTICS
A showing that auditing services had been peddled by incorporated church to
general public on basis of wholly non-religious pseudo-scientific
representations would support a verdict of false and misleading labeling of
instruments seized by Food and Drug Administration as devices with accompanying
false and misleading labeling. Federal Food, Drug, and Cosmetic Act, ss 1
et seq., 201(b, m), 304(a), 502, 21 U.S.C.A. ss 301 et seq.,
321(b, m), 334(a), 352; U.S.C.A.Const. Amends. 1, 4.
[13] DRUGS AND NARCOTICS
In order to raise a religious defense to charge of misbranding of device,
person charged with alleged misrepresentation must have explicitly held himself
out as making religious, as opposed to medical, scientific or otherwise
secular, claims. Federal Food, Drug, and Cosmetic Act, ss 1 et seq.,
201(b, m), 304(a), 502, 21 U.S.C.A. ss 301 et seq., 321(b, m),
334(a), 352; U.S.C.A.Const. Amends. 1, 4.
[14] FEDERAL COURTS
Where jury's general verdict may have rested upon grounds improper for First
Amendment reasons, a reviewing court will not pause to speculate whether jury's
verdict was actually reached on other, and permissible grounds.
U.S.C.A.Const. Amend. 1.
[15] FEDERAL COURTS
Denial of First Amendment rights is one of those exceptional instances where
appellate court will notice error in charge even when no objection is made at
trial. U.S.C.A.Const. Amend. 1.
[16] DRUGS AND NARCOTICS
If on new trial relating to condemnation of device and accompanying false or
misleading labeling defense of religious claim is made with regard to labeling,
it is incumbent on trial judge to rule in first instance as to whether each
item of alleged false and misleading labeling makes religious claims and hence
cannot be submitted to jury for factual determinations of whether it is a label
for device in question and whether it is false. Federal Food, Drug, and
Cosmetic Act, ss 1 et seq., 201(b, m), 304(a), 502, 21
U.S.C.A. ss 301 et seq., 321(b, m), 334(a), 352; U.S.C.A.Const.
Amends. 1, 4.
[17] CONSTITUTIONAL LAW
If government in event of a new trial in proceeding relating to condemnation of
device and accompanying false labeling successfully challenges bona fides of
church's claim of religion with respect to literature describing device and
asserted to be false and misleading labeling, First Amendment question as a
defense would disappear from case. Federal Food, Drug, and Cosmetic Act,
ss 1 et seq., 201(b, m), 304(a), 502, 21 U.S.C.A. ss 301 et
seq., 321(b, m), 334(a), 352; U.S.C.A.Const. Amends. 1, 4.
On Appellee's Petition for Rehearing
*1148 **231 Mr. Oscar H. Brinkman, Washington, D.C., for appellants.
Mr. Nathan Dodell, Asst. U.S. Atty., with whom Messrs. David G. Bress, U.S.
Atty., Frank Q. Nebeker, Asst. U.S. Atty., William W. Goodrich, Assistant
General Counsel, Department of Health, Education and Welfare, and Joanne S.
Sisk, Attorney, Department of Health, Education and Welfare, were on the brief,
for appellee.
Before WRIGHT, MCGOWAN and ROBINSON, Circuit Judges.
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. s 301 et seq. (1964). The Government
further charged that the instruments were 'devices' lacking 'adequate
directions for use,' in further violation of the Act. [FN1] After a jury
trial, a general verdict 'for the Government' was returned, and a judgment and
decree of condemnation was entered.
FN1. '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. s 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. s 352.
'The term 'interstate commerce' means * * * (2) commerce within the
District of Columbia * * *.'
21 U.S.C. s 321(b).
Appellants contend that the seizure of the articles 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 **232 on by the
Government to establish misbranding was not 'labeling' [FN2] within the meaning
of the statute as interpreted in the light of the First Amendment, we reverse.
FN2. As defined in 21 U.S.C. s 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,' [FN3] 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 * * *.' [FN4] The applicable procedure in admiralty at
the time of the seizure was provided in former Admiralty Rule 21, the text of
which is set out in the margin. [FN5]
FN3. 21 U.S.C. s 334(a).
FN4. 21 U.S.C. s 334(b).
FN5. '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 P.30, p. 236 (2d ed.1968).
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 [FN6] 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 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.
FN6. Appellants appeared as claimants to the seized goods in the District
Court, and demanded a jury trial, under 21 U.S.C. s 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. [FN7] Because we find *1150 **233 that the
seizure in this case was 'reasonable' under the applicable Fourth Amendment
standards, we do not reach that question.
FN7. 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).
[1] 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. [FN8]
FN8. 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).
[2] 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 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. [FN9] In cases in admiralty, the process is governed by the Admiralty
Rules, lately recodified as a supplement to the Civil Rules. [FN10]
FN9. Rule 64, FED.R.CIV.P.
FN10. 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 it and the judicial supervision over the decision to make
it.
[3][4] 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.
[FN11] 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. [FN12] 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. [FN13]
FN11. 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.
FN12. 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).
FN13. 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 **234 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; [FN14] that the literature seized constitutes
'labeling' of the device, in that it is 'written, printed, or graphic
matter * * * accompanying' the device; [FN15] and that this 'labeling' is false
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.
FN14. '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. s 321(h).
FN15. '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. s 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 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.' [FN16] 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.
FN16. 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 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. [FN17]
FN17. 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 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. [FN18]
FN18. 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 **235 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
by engrams.' [FN19]
FN19. 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.' [FN20] 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.
FN20. See SCIENCE OF SURVIVAL, supra Note 16, at 1 n. 1 (apparently a
footnote inserted into a later printing of this pre-Scientology book).
With Scientology came much of the overlay which lends color to the
characterization of the movement as a religious one. Hubbard has claimed
kinship between his theories and those espoused by Eastern religions,
especially Hinduism and Buddhism. [FN21] He argues that man is essentially a
free and immortal spirit (a 'thetan' in Scientological terminology) [FN22]
which merely inhabits the 'mest body' ('mest' is an acronym of the words
matter, energy, space, time). [FN23] Man is said to be characterized by the
qualities of 'beingness,' 'havingness,' and 'doingness.' [FN24] 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.' [FN25]
FN21. See, e.g., L. RON HUBBARD'S PAB's, BOOK III 14-20 (1956).
FN22. See SCIENTOLOGY: THE FUNDAMENTALS OF THOUGHT 32 (1956).
FN23. See SCIENTOLOGY 8-8008 at 13-19 (3d ed.1956).
FN24. See SCIENTOLOGY: THE FUNDAMENTALS of THOUGHT, supra Note 22, at 16.
FN25. See SCIENTOLOGY 8-8008, supra Note 23, at 20-44.
On the more mundane level, early in 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. [FN26]
FN26. 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 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 **236 (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 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. [FN27]
FN27. 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.
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. s 321(h).
The Government put on 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 **237 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. [FN28]
FN28. One Government witness, a psychophysiologist 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.
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 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 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.
[5] 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 **238 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). Thus the prohibition of plural marriage has been upheld, even
though the practice is a religious duty to some. [FN29] Similarly, parading
without a license [FN30] and the sale by children of religious literature
[FN31] have been prohibited, even though practiced as tenets of religious
faith.
FN29. 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).
FN30. Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049
(1941).
FN31. Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 64 S.Ct.
438, 88 L.Ed. 645 (1944).
[6][7] 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.' 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 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. 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 **239 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
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. [FN32] 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 **240 such a finding
would, in the light of Ballard, present the gravest constitutional
difficulties.
FN32. 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. * * *'
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).
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.' [FN33] 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.
FN33. 21 U.S.C. s 321(m).
The 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.
[8] Kordel thus laid down the broad lines for 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 [FN34] 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. [FN35]
FN34. United States v. 8 Cartons, etc., Molasses, W.D.N.Y., 103 F.Supp.
626 (1951).
FN35. 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).
On the other hand, in the Balanced Foods [FN36] case, general literature which
falsely claimed healthful properties for a food was found by the Second Circuit
not *1158 **241 to 'accompany' it. The facts of that case are
interesting. The best- sellers FOLD 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. [FN37]
FN36. United States v. 24 Bottles 'Sterling Vinegar & Honey, etc.', 2
Cir., 338 F.2d 157 (1964).
FN37. 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).
[9] 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 E-meter, and at the same time
give some guidance as to its use in the auditing process. [FN38] 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, [FN39] the Government placed little reliance upon
the these in presenting its case to the jury.
FN38. J. SANBORN, THE HUBBARD ELECTROMETER (1959); L. R. HUBBARD, E METER
ESSENTIALS 1961.
FN39. 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 statement were made, not about the E-meter itself, but about
the process of auditing in which it is used.
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.
[FN40]
FN40. 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 **242 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.' [FN41] 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 claims concerning the curative powers
of its auditing techniques.
FN41. 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 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. [FN42] In light of these considerations, highlighted by the
explicit holding of Ballard, [FN43] we *1160 **243 interpret the Act as
not including within its concept of 'labeling' the literature developing the
doctrines of a religion.
FN42. 2 D.C.CODE s 134(d) (1967) exempts from the operation of the
medical licensing laws 'persons treating human ailments by prayer or
spiritual means, as an exercise of 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).
FN43. 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.
[10] 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. [FN44] The fact that it
postulates no deity in the conventional sense does not preclude its status as a
religion. [FN45]
FN44. See text accompanying Notes 21-26, supra.
FN45. 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 selfproclaimed 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, [FN46] 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 concerning
what is or is not a church will follow. [FN47] When exemption from military
service is granted to those who object on religious grounds, there is similar
litigation. [FN48] When otherwise proscribed substances are permitted to be
used for purposes of worship, worship must be defined. [FN49] The law has
provided doctrines and definitions, unsatisfactory as they may be, to deal with
such disputes. [FN50] 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. [FN51]
FN46. 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).
FN47. 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).
FN48. United States v. Seeger, supra Note 45; United States v.
Kauten, 2 Cir., 133 F.2d 703 (1943).
FN49. 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).
FN50. 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), 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; In re Grady, supra Note 49; People v. Cole, supra
Note 42, 113 N.E. at 794.
FN51. 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. s 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.
*1161 **244 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. [FN52] We cannot assume as a matter of law that
all theories describing curative techniques 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. [FN53] 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.
FN52. 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. 997 (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 ss 120, 134 (1967), is
applicable to appellants' activities.
FN53. See, e.g., Schneider, op. cit. supra Note 42.
[11] 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 **245 or misleading labeling 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, 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. [FN54] 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. [FN55] Our holding prevents only a finding of false
labeling on the basis of doctrinal religious literature.
FN54. See 21 U.S.C. ss 331(a), 334(a), 341, 351.
FN55. See 21 U.S.C. s 352(f)(1).
Finally, 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.
Reversed.
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 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
**246 *1163 majority logically 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" 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 right 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 not result in criminal proceedings against the persons there involved.
I am not, however, satisfied that the Government officials did not sweep too
broadly in the 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 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.
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
[12][13] The Government has correctly inferred from our opinion that a
showing that 'auditing services 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. at , 409 F.2d at 1161. We gave
as further explication of this view a *1164 **247 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 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).' [FN1]
FN1. 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. at , 409 F.2d at
1158, n. 39 and n. 40.
[14][15] 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, [FN2]
could have found against the E-meter by finding false statements in 'labeling'
which was at the same time religious doctrine. See main opinion, 133
U.S.App.D.C. at , 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).
FN2. 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. at ,
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. at , 409 F.2d at 1154. However, even though the narrower
Ballard point was never raised in the form of objections to evidence or
suggested fury 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 in made at trial. 5 J.
MOORE, FEDERAL PRACTICE P51.04 (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).
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 **248 or that the evidence was
insufficient, it would appear that a new trial would be in order.
[16] 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. [FN3] See Jacobellis v. Ohio, 378 U.S.
184, 187-188, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964).
FN3. 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.
[17] 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
opinion, and continues to adhere to his dissenting opinion.