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CAUSE NO. C-2013-1082B
MONIQUE RATHBUN
Plaintiff,
v.
DAVID MISCA VIGE, RELIGIOUS
TECHNOLOGY CENTER, CHURCH
OF SCIENTOLOGY INTERNATIONAL,
STEVEN GREGORY SLOAT, AND
MONTY DRAKE
Defendants.













IN THE DISTRICT COURT
207TH JUDICIAL DISTRICT
COMAL COUNTY, TEXAS
DEFENDANT CHURCH OF SCIENTOLOGY INTERNATIONAL'S ANTI-SLAPP
MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Defendant Church of Scientology International ("CS!") and files its Anti-
SLAPP Motion to Dismiss the First Amended Petition (F AP), and each of the four causes of
action alleged under it, pursuant to Chapter 27 of the Texas Civil Practice and Remedies Code.
CS! brings this motion at this time because it is required to bring such a motion under the statute
within sixty days of the date upon which it received service of the original complaint, which was
August 20, 2013. Texas Civil Practice and Remedies Code 27.003(b). In suppo1i of this
motion, CS! submits the affidavits of Allan Cartwright ("Cartwright Aff."), David Lubow
("Lubow Aff."), John Allender ("Allender Aff."), Richard Hirst ("Hirst Aff."), Monty Drake
("Drake Aff. "), and Steven Sloat ("Sloat Aff.") and will show the Court as follows:
l. INTRODUCTION
I. The comi must dismiss this lawsuit, and each cause of action alleged under it,
pursuant to Texas' anti-SLAPP statute ("the Statute") because the pleadings on file, this Motion,
.( and the supporting affidavits and evidence show by a preponderance of the evidence that this
lawsuit is based on, relates to, or is in response to CSI's exercise of the rights of free speech and
association and the right of petition. See Tex. Civ. Prac. & Rem. Code 27.005(b), 27.006.
II. DISMISSAL PROCEDURE UNDER THE STATUTE
2. Plaintiffs claims against CS! are barred by the Citizens Patticipation Act, Chapter
27 of the Civil Practice and Remedies Code, which is the Texas anti-SLAPP statute enacted in
2011, as amended by Acts 2013, 83rd Leg., Ch. 1042 (H.B. 2935), I, eff. June 14, 2013. A
"SLAPP" is a "strategic lawsuit against public participation." Chapter 27 provides for an early
and expedited dismissal of such lawsuits, which seek to shut down and silence citizens' exercise
of their First Amendment rights. The Statute's purpose "is to encourage and safeguard the
constitutional rights of persons to petition, speak freely, [and] associate freely." Id. 27.002.
The legislature has determined that unmeritorious lawsuits subject to chapter 27
should be dismissed early in litigation, generally before parties must engage in
discovery .... The supporters of the bill leading to the enactment of chapter 27
noted that the bill's purposes were to allow a prevailing movant of a motion to
dismiss to achieve dismissal "earlier than would otherwise be possible" and to
avoid costly legal expenses, including discovery expenses, even before the
summary judgment stage of litigation. . . . Requiring a proper movant for
dismissal under chapter 27 to engage fully in litigation, including a possible trial,
would eviscerate these purposes and would ignore the legislature's determination
that customary procedures are inadequate in some respects to protect defendants
in cases falling within chapter 27's guidelines. Likewise, requiring proper chapter
27 movants generally to proceed through litigation when they should be entitled
to dismissal harms a broader purpose of chapter 27 to encourage and safeguard
the constitutional rights of persons to petition, speak freely, associate freely, and
otherwise participate in government to the maximum extent permitted by law.
In re Lipsky, 02-12-00348-CV, 2013 WL 1715459 at *16 (Tex. App.-Fo1t Worth Apr. 22,
2013, no pet.) (internal citations and quotations omitted). The Statute provides for dismissal of
a lawsuit that "is based on, relates to, or is in response to a party's exercise of the right of free
speech, right to petition, or right of association." Id. 27.003(a). Coutts are directed that the
Statute "shall be constrned liberally to effectuate its purpose and intent fully." Id. 27.01 l(b).
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3. CSI was served with this lawsuit on or about August 20, 2013, less than sixty
days before filing this Motion. See id. 27.003(b).
4. A hearing on this Motion must be set within 60 days of service of this Motion,
unless the Court's docket conditions require a later hearing. Id. 27.004. The Court must then
rule on the Motion no later than 30 days after the hearing date.
5. The Court is required to dismiss this suit, and each cause of action alleged under
it, under the Statute "if the moving patty [CS!] shows by a preponderance of the evidence that
the legal action is based on, relates to, or is in response to the patty's exercise of:(!) the right of
free speech; (2) the right to petition; or (3) the right of association." Id. 27.005(b). In making
this determination, the Court is to consider the pleadings, the supporting and opposing affidavits.
Id. 27 .006. Under the Statute, each cause of action set forth in the FAP is deemed a "Legal
Action" and is subject to a motion to dismiss under the Statute. Id. 27.001(6), 27.003(a).
6. To avoid dismissal plaintiff must "establish[] by clear and specific evidence a
prima facie case for each essential element of the claim[s] in question." Id. 27.005(c)
(emphasis added). "The purposeful inclusion of a '"clear and specific evidence'" requirement
indicates that the non-movant must satisfy an elevated evidentiary standard under 27.005(c)."
Rehak Creative Services, Inc. v. Witt, 404 S.W.3d 716, 726 (Tex. Civ. App.-Houston [14th
Dist.] 2013, no pet.) (specifically rejecting argument that court should "import into Chapter 27
the 'scintilla of evidence' concept applicable in the context of a no-evidence motion for summary
judgment"). As the Comt emphasized in Witt, to meet her burden of "clear and specific
evidence," a plaintiff cannot rely on "presumptions, inferences or intendment."
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Id. quoting
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See also KTRK Television, Inc. v. Robinson, 01-12-00372-CV, 2013 WL 3483773 at *5 (Tex.
App.-Houston [!st Dist.] July 11, 2013, pet. filed) ('"Clear' means 'unambiguous,' 'sure,' or
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McDonald v. Clemens, 464 S.W.2d 450, 456 (Tex. Civ. App.-Tyler 1971, no writ); S. Cantu &
Son v. Ramirez, l 01 S.W.2d 820, 822 (Tex. Civ. App.-San Antonio 1936, no writ) ("Charges of
fraud must be established by clear and specific evidence, which may not be aided by
presumptions or inferences, or intendment").
7. Even if a plaintiff can establish by clear and specific evidence a prima facie case
for each element of her claim, the Court nevertheless "shall dismiss a legal action against the
moving pmty if the moving party establishes by a preponderance of the evidence each essential
element of a valid defense to the non-movant's claim." Tex. Civ. Prac. & Rem. Code
27.005(d). Thus, for example, even if a libel plaintiff can establish by prima facie evidence the
elements of a libel, a court is required to dismiss the action if the defendant can establish a First
Amendment defense.
III. FACTUAL BACKGROUND TO THE DISPUTE
8. Plaintiff Monique Rathbun is the wife of Marty Rathbun. The events and
underlying dispute mainly concern her husband, although, as the uncontroverted facts show,
plaintiff has inte1jected herself, and pe1mitted her husband to interject her, into those disputes in
a public and confrontational manner. For example, Marty Rathbun's website provides a link
entitled "News About Monique," which links to an article on this lawsuit quoting extensively
from plaintiffs Original Petition and plaintiffs counsel. Cartw1ight Aff. ii 15. Moreover, Mr.
Rathbun has intentionally, repeatedly, and in a very public manner made the Rathbun home the
location for his anti-Scientology rants.
9. Mr. Rathbun was a member and official of the Church of Scientology for over 20
years when he was relieved of his duties in December 2003 for gross misconduct. He
'free from doubt.' Black's Law Dictionary 268 (8th ed. 2004). 'Specific' means 'explicit' or
'relating to a pmticular named thing.' Id. at l l 67").
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subsequently left the Church in 2004. Cattwright Aff. iJ 5. Five years after leaving the Church,
he became a self-proclaimed "independent Scientologist" practicing his own version of what he
calls "Scientology." Mr. Rathbun purports to provide "independent Scientology" services to
followers, often for a fee, out of his place of business, which also is his residence. Id. iJiJ 5-8. He
also has written books and posts an Internet blog that attack his former church. Id. iii! 14-16. He
has conducted media interviews and produced videos to that end at his place of business in
Texas, and has distributed his videos and transcripts of his interviews on the Internet. Id. iii! I 0,
13.
10. Mr. Rathbun's blog, which he stmted publishing in 2009, contains vitriolic,
defamatory and false attacks on the Church and its ecclesiastical leadership. Cartwright Aff. iJ
14, Exh. 14. Mr. Rathbun has likened himself to a modern day Mmtin Luther, even to the point
of publishing a document entitled "31 Factors," transparently modeled on Luther's "95 Theses,"
which he posted on his Internet blog, in an obvious imitation of Luther's nailing of his "95
Theses" on the door of the Wittenberg Castle church. Id. iJ 16, Exh. 2. He has accused the
Church and its leadership of departing from Scientology doctrine and corrupting the religious
practice of Scientology, and has claimed that his "independent Scientology" practice is the true
religion faithful to its founder, L. Ron Hubbard. Id. iJ 16, Exhs. 6, 8. He has called for the
destrnction of the Church of Scientology and its replacement by his version of "independent"
Scientology. Id. iJ 7, 16, Exh. 6.
11. Mr. Rathbun has also used his blog to solicit persons to visit his place of business
to receive "independent Scientology" services from Mr. Rathbun and from plaintiff, often for a
fee. Cattwright Aff. iii! 5, 6, 7, 15. Indeed, as recently as October 12, 2013, Rathbun posted
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comments from "recent visitors" who had received such services including at his most current
place of business/residence. Id. if 15.
12. Mr. Rathbun has voluntarily appeared on BBC, NBC, CNN (Anderson Cooper),
ABC (Nightline), and other television venues. Cartwright Aff. ilif 9-11. He has conducted
interviews with leading newspaper publications including the New York Times, Tampa Bay
Times, Texas lvfont!zly, and various local newspapers throughout the United States where he is
widely and often quoted making the same allegations. Id. Many of those interviews have taken
place at Mr. Rathbun's place of business/residence. Indeed, several of the interviews were filmed
inside Mr. Rathbun's place of business/residence, and transmitted to the world. For example,
Rathbun appeared for an on camera interview from his home on ABC's Nightline which was
aired on October 22, 2009. Cartwright Aff. if I 0, Exh. 9, screenshot. Channel 4 in the United
Kingdom did a show featuring the Rathbuns which aired on June 17, 2013, and which showed
Monique inside their house. Id., Exh. 10. The Rathbuns hosted a repmter and video crew from
the German station N-TV, which showed Monique in her living room when it aired on N-TV in
Germany on December 11, 2012. Id., Exh. 11. In early 2012, reporter Guy Adams was invited
into their business/residence and given an interview, and his article ran in the UK Independent on
April 7, 2012, with a photograph of Rathbun standing before his Scientology books in their
business/residence. Id. if I 0, Exh. 12.
13. Rathbun has also produced videos of himself and others and has his own
YouTube channel which cmrnntly contains over 70 videos. These include videos with his
associate Mike Rinder, attacking the Church and its officials while sitting at Rathbun's residence
and place of business in Texas. Monique is also featured on a number of his biogs including
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videos he shot of her in their home. Cmiwright Aff., Exh. 13, blog. He distributed his videos
and transcripts of his interviews over the world-wide Internet. Id. ii 13.
14. Mr. Rathbun has met and planned actions against the Church with overseas
attackers of the Church, including one local official in Germany whom the United States State
Department has found to be an infringer of religious rights and an anti-religionist (U.S.
Department of State, International Religious Freedom Repoti 2003,
http://www.state.gov/j/drl/rls/irf/2003/24410.htm). He actively participated in a press conference
in Germany with that official in which he repeated his attacks on the Church and its leadership.
Cartw1ight Aff. ii 12. His blog provides links to these various anti-Scientology groups and
individuals.
15. After departing the Church, Mr. Rathbun has made uninvited visits to Church
premises, during which he harassed parishioners and staff. Cartwright Aff. ii 18. On one
occasion, Mr. Rathbun impersonated a Church executive claiming to be calling on behalf of the
cmTent President of Religious Technology Center, a defendant in this case to get to speak to a
particular staff member, and when he got through to her, he attempted to pull her out of the
Church; the staff member angrily rejected his effort. Id. After continued incidents, Mr. Rathbun
was issued a "Trespass Warning" citation by the Clearwater, Florida Police Department
effectively preventing him from disrnpting Church services. Id., Exh. 17.
16. Mr. Rathbun has explicitly encouraged parishioners and staff members to leave
the Church, to take Church property and Church proprietary and confidential infotmation with
them and deliver them to his residence in Ingleside on the Bay, Texas. He posted several
statements on the Internet openly inviting church staff members to steal church documents and
records, promising to provide them with legal support should they do so. Cartwright Aff. ii l 9.
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In fact, he provided legal and logistical support to at least one such person who stole confidential
materials from the Church's publishing company and brought them to Mr. Rathbun and others
associated with him. Id. if 20, Exhs. l 9-21.
17. Since leaving the Church, Mr. Rathbun has attempted to practice an independent
or "indie" Scientology. He has done so from his place of business, which is also his residence.
Cartwright Aff. if 5, 8. Plaintiff has encouraged him to do so, and has herself engaged in the
unauthorized provision of Scientology auditing to others. Id. irif 5-7. She has done so from her
and her husband's place of business, which is also their residence. Id. if 8. To Scientologists, a
person who engages in such unauthorized practice of Scientology is considered a "squirrel."
Hence, both of the Rathbuns are considered "squirrels" by Scientologists in good standing. Id. if
7.
18. Mr. Rathbun has been represented in vmious legal matters by his wife's lawyer
and lead counsel in this lawsuit, Ray Jeffrey. Mr. Rathbun and another detractor of the Church,
Mike Rinder, have directly or indirectly participated in, consulted, and/or assisted in at least
fomieen legal matters related to or against the Church. Cmiwright Aff. if 21, listing the fourteen
cases.
19. Plaintiff Monique Rathbun has aided and abetted her husband Marty Rathbun in
many of the acts referenced above. In addition, Plaintiff has independently attacked the Church
and its leaders. She has posted defamatory material, statements, and highly vitriolic messages
and comments on Facebook, with links to Mr. Rathbun's blog. She has also used such "fighting
words" in her own postings on that blog. Cmiwright Affif 22. She has appeared on NBC Rock
Center and Channel 4 in the United Kingdom, and has been quoted in articles including in Texas
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Monthly. She accompanied her husband to Getmany for his meetings, and attended the press
conference in which he and others attacked the Church and its leadership. Id. if 22.
20. In April 2011, a few individual Scientologists, outraged by Marty Rathbun's
alteration and misuse of Mr. Hubbard's works and Rathbun's claim to be practicing Scientology,
as well as by his attacks on the Church, went to Ingleside on the Bay, Texas, where the Rathbuns
engaged in the practice of what they call "independent Scientology" to document the Rathbuns'
abuses and to produce documentary video of such abuses, including their provision of "squirrel"
Scientology from their place of business/residence. They called themselves the Squirrel Busters.
Cartwright Aff. if 23; Allender Aff. iii! 5-6; Lubow Aff. iii! 9-12; Hirst Aff. if 5-7.
21. SquitTel Busters Productions was a Fictitious Business Name established by
Scientologist John Allender who was the Producer. Allender worked closely with Mark Warlick,
a professional photographer and videographer, and defendant David Lubow, who acted as the
director and co-producer of the project. Allender Aff. iii! 6-9. Lubow, in addition to being a
private investigator, was a filmmaker who had written and produced a feature-length
documentary Prescription: Suicide? concerning the psychiatric abuse of prescription medication
with children. Lubow Aff. if 3. In November of 2005, Prescription: Suicide? premiered at the
Ft. Lauderdale International Film Festival where it won the "Spirit of Independents" award. The
film has appeared in many other film festivals across the U.S. and Canada, including the Beverly
Hills Film Festival where it received an Honorable Mention. The film has been seen by at least
600,000 people thus far. Id.
22. Lubow hired a few professional film crew members to work on the filming and
production, including professional videographer Bart PatT, who did most of the filming. Most of
the Squirrel Busters were Scientologist volunteers who changed from week to week because of
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their other commitments. Lubow also hired a security guard. CSI provided some financial and
legal support to the Squirrel Busters, and retained Lubow for his services. Cartwright Aff. iJ 23;
Lubow Aff. iii! 11-12.
23. The purpose and scope of the Squitl'el Busters activities is explained by Allender
in his affidavit:
In or about March of201 I, I received a call from Mr. Warlick, who told me more
about what Rathbun was doing in attacking our religion and its Founder with
many false statements which the media was willingly repeating. I learned that
Rathbun, who was expelled from the Church of Scientology, was promoting
himself as an "independent Scientologist," and claiming that our religious
practices were somehow wrong, that he could do better than the standard Church
practices in delivering Scientology, and encouraging Scientologists to leave our
faith. I saw some of the public statements and articles quoting Rathbun in this
regard, which I viewed as outrageous. Allender Aff. iJ 5.
Mr. Warlick said he intended to go to Texas where Rathbun lived and let Rathbun
know very directly that Church parishioners knew what Rathbun was doing and
we knew he was a squill'el. I discussed this with Mr. Warlick and volunteered to
help and to speak to Rathbun personally about his wrongful conduct. Id.
I thereafter traveled to Ingleside on the Bay, Texas and met with Mark Warlick,
and Richard Hirst (another Scientologist who volunteered for the protest and
documentary project). We discussed what should happen in terms of reacting to
Marty, because there was concern that he could be volatile and violent, and
determined that no matter what he did, we would maintain a totally non-violent
form of demonstration. l hoped through pointed questions and demonstrations,
but not reacting in kind to anything Rathbun might say against my religion, to
shame him into changing his ways. The goal was to get him to stop presenting
himself as a Scientologist and to recant. To me he was obviously trying to make
some cash over his noto1iety and relying on the media to do that. Religiously, it
was very offensive to pretend to practice Scientology and to denigrate the real
practice of Scientology. Id. ii 8.
We also wanted to show who Rathbun really was through videos, interviews and
a documentary - a man who was dishonest, illogical and a "squi1Tel," and that the
"SquiITel Busters" exercised their rights to protest that squirreling and attacks on
our religion. We hoped to do this by asking questions to Rathbun to get him to
reveal his squirreling and his true nature. We wanted to let him know that ive
knew what he was doing. Id. ii 9.
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24. The SquitTel Busters were in Ingleside on the Bay near Rathbun's place of
business from April 18-21, 2011 and June I 0 through approximately September 16, 2011 (the
last day SquitTel Busters filmed). Except for the few minutes on April 18, 2011 (see below)
when the Squirrel Busters knocked on Rathbun' s door, all the rest of the film shooting was done
on public propetiy. Allender Aff. if 12; Lubow Aff. if 15.
25. Squirrel Busters made their first contact with Rathbun on April 18, 2011, on the
front porch of his place of business and house in Ingleside on the Bay. The documentary team
on this day was composed of a professional videographer named Bart Parr and three
Scientologists: John Allender, Richard Hirst and Mark Warlick. While Rathbun stood outside
his doorway, they attempted to interview Rathbun about his "squirrel" counseling practice. As
plaintiff has conceded at the hearing on September 12, 2013, the discussions involved debate
about issues relating to the Scientology religion. (Catiwright Aff., Exh. 7 at 199:9-11). Rathbun
asked them to leave his property, which they did. Before retreating back into his place of
business and house, Rathbun pulled the microphone away from John Allender, snapping it from
its mount into his hands which Rathbun kept and took inside. This was the only time that the
Squirrel Busters went onto Rathbun's property. This incident was video recorded by Rathbun
and posted on his blog, and was also turned into a video by the SquitTel Busters and posted on
their Y ouTube Channel. Allender Aff. if 9.
26. During the course of their filming activities, the Squirrel Busters had numerous
non-violent verbal encounters with Rathbun and plaintiff in public areas, in the course of which
they discussed, often in heated or argumentative terms, Rathbun's "squitTel" and anti-
Scientology activities. Allender Aff. if 12. As plaintiff has acknowledged in her sworn
testimony before this court, no member of the Squirrel Busters ever trespassed on her propetiy.
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Cartwright Aff., Exh. 7 at 200:5-7. Moreover, no Squirrel Buster ever entered the Rathbuns'
place of business/residence, peered into it, photographed inside of it, used any fon'IJ of electronic
surveillance with respect to it, used any fo1m of microphone to overhear private conversations of
plaintiff or her husband inside or on the porch of the place of business/residence or interfered
with or wiretapped the Rathbuns' telephone or Internet service, physically blocked or interfered
with the Rathbuns' freedom of movement, or physically touched or threatened the Rathbuns.
Ca11wright Aff. if 27, Exh.7 at 200:3-7; Allender Aff. if 14; Lubow Aff. iii! 6-7; Hirst Aff. if 9. In
contrast, "in one incident when [Allender] attempted to interview Rathbun on the street in front
of his office/home where he was operating his squi1Tel practice, he repeatedly sprayed [Allender]
and [his] microphone with a hose. The water mined the microphone." Allender Aff. if 11.
Despite this and other incidents of harassment by Rathbun, none of the Squirrel Busters ever
retaliated or engaged in any act of physical contact or threat with either Rathbun. Hirst Aff. if 8.
27. On June 21, 2011, the City of Ingleside passed an ordinance directed at the
Squirrel Busters, requiring them to file for a permit in order to film. The Squirrel Busters then
filed an application for a permit, but subsequently withdrew it upon legal advice that the
ordinance was unconstitutional as drafted. The film crew continued to film but also hired a local
attorney, Richard W. Rogers, to assist them as needed. On their behalf, on July 20'h he wrote to
the County Attorney stating that they would comply with all legal requirements. The City then
repealed the Ordinance. Allender Aff. ~ 15.
28. On September 20, 2011, the Squirrel Buster's lawyer, Richard Rogers, received a
call from a San Antonio attorney, Christopher Gale, who said he represented Rathbun and
threatened to file a lawsuit. Rogers met with Gale and Rene Rodriguez, another lawyer
representing Rathbun, and emphasized that his clients' acts were protected by the First
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Amendment. On October 5, 2011, Rogers met again with Gale. Gale requested that the Squin-el
Busters agree to stay 150 yards away from the Rathbuns' property. Rogers told Gale the Squin-el
Busters could possibly agree to remain at least 20 feet away from property. lnfoooal
negotiations continued between Rogers and Gale, but no agreement was reached and no lawsuit
was filed. Allender Aff. if 16.
29. During the time the Squin-el Busters were in Ingleside, a number of news
reporters visited Rathbun and plaintiff at their place of business and elsewhere, where they
interviewed and filmed the Rathbuns. These included Frank Nordhausen from a Geooan TV
Channel, Mark Colette from the Co1pus Christi Caller Times, John MacCoooack of the San
Antonio E\press-News, Mike DaSilva from ABC Channel 3, and Amanda Torres, from the
Aransas Pass Progress. There were several stories in the local press (San Antonio .\press-News
and Co1p11s Christi Caller Times). In fact, the readers of the Caller Times voted the Squirrel
Busters mticles as "Story of the Year." Cartwright Aff. if 25.
30. Other media continued to have interest in this dispute. The Village Voice of New
York, an alternative newspaper, repeatedly covered the Squin-el Busters in its biogs, posted
videos made by both Rathbun and the SquitTe! Busters, and published a letter from the Squin-el
Busters. In March 2012, CSI responded to questions about the Squin-el Busters from The
Independent in the UK, and in July 2012, CSI responded to questions about them from NBC TV.
Cmtwright Aff. if 26.
31. The Squil1'el Busters used some of their video footage to make at least 14 videos
that they posted on their own YouTube channel, "The Squil1'el Zone." They also created a series
of radio ads. Rathbun countered by posting at least 20 videos on his blog and/or YouTube
channel about the SquitTel Busters. Cartwright Aff. if 24.
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32. CSI, through its counsel, retained several licensed professional private
investigators as a result of Marty Rathbun's actions. In patticular, these investigators were hired
because of Rathbun's appropriation of CSI's intellectual property, his exhortations to others to
engage in theft of csr materials and property and to bring the materials to him, including his
offers to "protect" them for their illegal acts, his trespass upon Church properties, his use of a
rnse to speak to CSI staff members and to importune them to renounce their religious
commitment, his threats of litigation, his involvement as a witness, "consultant," and solicitor of
other litigation, and his public attacks upon Scientology and its officials, including his use of
highly defamatory allegations. Cartwright Aff. if 27; Drake Aff. if 7; Lubow Aff. iii! 4-5. The
private investigators' work product was sought in connection with possible affirmative litigation,
or in connection with defense of litigation threatened by Rathbun or in which Rathbun played a
part. Id. No private investigator was directed or authorized to use improper, unethical, unusual,
or illegal methods, and none did. Cartwright Aff. if 27; Lubow Aff. irir 6-7; Drake Aff. iii! 8-9;
Sloat Aff. iii! 6-11. No private investigator entered the Rathbuns' place of business/residence,
peered into it, photographed inside of it, used any foim of electronic surveillance with respect to
it, used any form of microphone to overhear private conversations of plaintiff or her husband
inside or on the porch of their place of business/residence, interfered with or wiretapped the
Rathbuns' telephone or Internet service, physically blocked or interfered with the Rathbuns'
freedom of movement, or physically touched or threatened the Rathbuns. Cartwright Aff. if 27;
Lubow Aff. iii! 6-7; Drake Aff. iii! 8-9; Sloat Aff. iii! 6-10.
IV. PLAINTIFF'S CLAIMS
33. Plaintiffs claims are set forth in her First Amended Petition and her affidavit
attached to her FAP. She asserts four causes of action: intentional infliction of emotional
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distress, intentional interference with contract, intrnsion of privacy, and breach of privacy by
publication of private facts, for which she seeks damages and injunctive r e l i e t ~
34. In purported support of her causes of action, plaintiff alleges that she is married to
Marty Rathbun, who, she alleges, worked for the Church of Scientology for 27 years and was its
second highest official. FAP if 9. The FAP states that Marty became disaffected from the
Church and left in 2004. FAP if 10. In 2009, Marty decided "to speak out" against the Church's
leadership. FAP if 12. Plaintiff claims that she had no involvement in Marty's attacks on
Scientology, other than that she was married to him. FAP if 12. The FAP alleges that
neve1iheless the defendants unde1iook a campaign against her husband and her in which they
purportedly have been "harassed, insulted, surveilled, photographed, videotaped, defamed, and
humiliated." F AP if 14. More specifically, plaintiff alleges that CS! retained private
investigators to undertake such actions. She further alleges, as "an important basis of this
lawsuit" (FAP if 28), that CSI directed a group called the "Squirrel Busters," that undertook to
film Marty Rathbun for the purpose of producing a video documentary in response to his attacks
upon the Church and its leadership. Plaintiff alleges in her affidavit that the Squirrel Busters
followed the Rathbuns, videotaped their movements, attempted to question and insult them, and
sent individuals to their house to question them. Monique Rathbun Affidavit ifi! 8-9 ("Rathbun
Aff."). Plaintiff also alleges, in her affidavit but not her complaint, that someone sent her a "sex
toy" at her office, which she attributes to the defendants, and that allegedly "Scientology
websites have published bizan-e and sometimes vile allegations against me, including claims that
I am a sexual perve1t." Rathbun Aff. iii! l l-12. (Plaintiff does not allege a claim for defamation,
however, nor does she allege the elements of such a tort.)
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35. Plaintiff presents no evidence that any of the conduct upon which she rests her
claims is ongoing or that there is an imminent threat that it will resume. Indeed, she
acknowledges that the actions of the Squirrel Busters ended over two years ago. Caiiwright Aff.,
Exh. 7 at 180:23-25.
V, ARGUMENT
A. DEFENDANT CSI MAY BRING A MOTION TO DISMISS PURSUANT TO THE
ANTI-SLAPP ST A TUTE
36. The Statute provides that if a legal action "is based on, relates to, or is in response
to a party's exercise of the right to free speech, right to petition, or right to association, that paiiy
may file a motion to dismiss the action" under the procedures set fmih in the statute. Tex. Civ.
Prac. & Rem. Code 27.003(a).
37. The FAP, and each of its causes of action, indisputably "is based on, relates to, or
is in response to [CSI's and individual Scientologists'] exercise of the right to free speech, right
to petition [including in a 'judicial proceeding'], or right of association" on matters of "public
concern", within the meaning of the statute.
38. First, as plaintiff states (FAP ii 28), a primary focus of the F AP is upon the
activities of the so-called Squirrel Busters group. This would include acts of standing in protest
near Rathbun's property, holding signs of protest, attempting to speak to passers-by or those
entering or leaving the property about the impropriety or incorrectness of Rathbun' s activities,
and filming Rathbun and others in public places as part of the production of a documentary or
video about issues of potential public importance, including importance to Scientologists. These
activities lie at the core of the First Amendment, and cannot form the basis of a valid claim for
damages or injunctive relief. (Injunctive relief is also improper because the activity in question
ended over two years ago and there is no imminent possibility that it will be repeated.)
16
39. Second, the FAP alleges investigative acts of licensed private investigators. As
we show, CSI's use of investigators to dete1mine whether and to what extent Rathbun was
engaging in acts that might give rise to a legal action for trademark infringement, Lanham Act
violations, defamation, or even criminal theft of materials, as well as to investigate him to refute
or impeach his testimony as a witness in over 14 lawsuits with which he became involved, is
protected, including as incident to First Amendment rights to petition the judiciary for redress.
1. The Actions Of The Squirrel Busters Group Were Protected By The Statute And
The First Amendment
40. The protest and film production endeavors of the SquilTel Busters are strongly
protected by the First Amendment rights of free speech, and are within the scope of the Statute.
Under the Statute, "exercise of the right of free speech" means "a communication made in
connection with a matter of public concern." Tex. Civ. Prac. & Rem. Code 27.001(3). A
matter of public concern under the anti-SLAPP statute includes, but is not limited to, an issue
related to community well-being, a public figure, or services in the marketplace. Id. 27.001(7).
All three factors are present here.
41. First, Rathbun engaged m his continuous and extreme attacks upon the
Scientology religion and its officials because he claimed it was a matter of community well
being, and certainly the Squirrel Busters engaged in their activities trying to call his actions to
task and create a documentary film about them because they felt the defense of Scientology and
the rejection of Rathbun's campaign were also matters of community well being. The
widespread media interest and coverage of the dispute, invited and encouraged by Rathbun
himself, demonstrates that the dispute was a matter of public concern.
42. Second, by any standard, Rathbun and his plaintiff wife made themselves public
figures, at least with respect to issues relating to Scientology, by Rathbun's multi-year public
17
campaign against Scientology, conducted on an international basis, and by plaintiffs ongoing
and enthusiastic participation and support of that campaign. Moreover, by the couple's
intentional acts, their residence was deliberately made the centerpiece of their campaign. A
three-part test determines whether one is a limited-purpose public figure: (I) The controversy is
public - that is, people other than immediate participants must discuss it and must be likely to
feel the impact of its resolution; (2) the plaintiff must have more than a trivial or tangential role
in the controversy; and (3) the alleged t01tious speech must be related to the plaintiffs
pat1icipation in the controversy. WFAA-TV. Inc. v. Mclemore, 978 S.W.2d 569, 571 (Tex.
1998). The test does not distinguish between those who have voluntarily inserted themselves
into a controversy and those who are involuntarily drawn into one. Id. at 571-72.
43. Plaintiff has conceded that her husband is a public figure. Cattwright Aff. iJ 9,
Exh. 7 at 194:4-9. That concession, by itself and without more, is sufficient to show that the acts
of the Squirrel Busters, directed as they were to Marty Rathbun, involved matters of public
concern within the meaning of the Statute. While plaintiff denies that she is a public figure, not
only is that question legally in-elevant once it is conceded that her husband is, plaintiff has
clearly injected herself into the public dispute created and exacerbated by her husband to a
sufficient degree that she too must be deemed to be a limited public figure, at least for purposes
of the anti-SLAPP Statute's definition of a matter of public concern. See, e.g., Denney v.
Lawrence, 22 Cal. App. 4th 927, 936 (Cal. Ct. App. 1994) ("Because [plaintiff] thus voluntarily
involved himself in the public debate and attempted to influence public opinion, he thereby
became at least a limited public figure"); Scaccia v. Dayton Newspapers, Inc., 2001 Ohio 1834,
*9 (Ohio Ct. App. Nov. 30, 2001) ("[Plaintiff] intentionally ... injected herself into a public
controversy, and thereby became a public figure for that limited purpose. Furthermore, the fact
18
that [plaintiff] is man1ed to the public official bolsters her public-figure status. Therefore,
[plaintiff] is a public figure for purposes of her defamation claim at1sing from the articles at
issue"); Burns v. Times Argus Ass 'n, 139 Vt. 381, 385-86 ( 1981) (In defamation suit against
newspaper by wife of Lieutenant Governor, who campaigned for her husband and attended party
functions while he was in office, plaintiff was deemed a public figure with respect to his office
and activities relating to it).
44. Indeed, even if plaintiff had done far less than she did to inject herself into the
public controversy generated by her husband, she nevertheless must be deemed an involuntary
public figure with respect to that controversy: "The one group of individuals that might trnly be
considered involuntary public figures are relatives of famous people." Marcone v. Penthouse
lnt'/ Jvfagazine.for Men, 754 F.2d 1072, 1084, n. 9 (3d Cir. 1985) (citing Meeropo/ v. Nizer, 381
F. Supp. 29 (S.D.N.Y. 1974) (children of Julius and Ethyl Rosenberg are public figures), aff'd in
relevant pa1i, 560 F.2d 1061 (2d Cir. 1977), cert. denied, 434 U.S. 1013 (1978). Thus, in Brewer
v. lvfemphis Pub. Co., 626 F.2d 1238 (5th Cir. 1980), the court held that the husband of a public
figure entertainer must be treated as a limited purpose public figure in a lawsuit arising out of a
news article about his wife's alleged affair with Elvis Presley that made reference to him,
because the degree of First Amendment protection accorded to the news defendant for publishing
an mticle about his wife could not be undercut by the fact that he inevitably was also a subject of
the mticle: "he may not, by marrying [a] public figure, reduce the constitutional protection
afforded the press to publish stories about his spouse." Brewer, 626 F.2d at 1257-58. So too
here, plaintiff may not, by maffying a public figure, reduce the constitutional protection afforded
the Squirrel Busters and CS! to speak, associate, and assemble to protest the activities of her
spouse, merely because, in doing so, their actions inevitably may affect her interests in
19
supposedly not being involved in a public controversy. See also Friedan v. Friedan, 414 F.
Supp. 77, 79 (S.D.N.Y. 1976) ("although plaintiff alleged he has made every effort to
disassociate himself from his former wife's public status to preserve his identity as a private
person, he does not asset1 a [valid] cause of action for [invasion of privacy] ... While plaintiff
here has not acted affitmatively to make himself newsworthy, within the limited context of his
past relationship to defendant Betty Friedan, who is a public figure, such a role has been thrust
upon him"); Carson v. Allied News Co., 529 F.2d 206, 210 (7th Cir. 1976) (wife of famous
entertainer acknowledged to be a public figure).
45. Third, as a self-appointed and self-created public figure, Rathbun invited and
expected a strong public reaction and debate about his actions and attacks. Indeed, Scientology
is a religion and the services it provides are in the "marketplace" of religious beliefs and
practices; attacks against Scientology and defense of it and counter-attacks against its attackers
are within the market place of ideas protected by the First Amendment. Abrams v. United States,
250 U.S. 616, 630 (1919) (Holmes, J., dissenting) ("The ultimate good desired is better reached
by free trade in ideas - that the best test of truth is the power of the thought to get itself
accepted in the competition of the market"), quoted and followed in, inter alia, Hustler
Magazine v. Falwell, 485 U.S. 46, 51 (l 988) (per Rehnquist, C.J.); Consolidated Edison Co. v.
Public Service Comm., 447 U.S. 530, 534 (1980); see New York Times v. Sullivan, 376 U.S. 254,
276 (l 964) (citing Holmes' dissent in Abrams); Citizens United v. Federal Election Comm., 558
U.S. 310, 354 (2010) (resting decision on "the 'open marketplace' of ideas protected by the First
Amendment"). At the evidentiary hearing on the temporary i1tjunction, the Court saw a small
sample of this in a video clip showing plaintiff handing a copy of the Church Creed to the
20
Squiffel Busters. She acknowledges she was "having a religious discourse peacefully with the
people." Cartwright Aff., Exh. 7 at 199:4-11.
46. In addition to its provisions to protect the "right of free speech," the Statute also
has a purpose and effect "to encourage and safeguard the constitutional rights of persons to ...
associate freely," Tex. Civ. Prac. & Rem. Code 27.002, and provides for a special Motion to
Dismiss "ifa legal action is based upon, or relates to, or is in response to a party's exercise of the
... right of association." Tex. Civ. Prac. & Rem. Code 27.003{a). The Statute defines the
"exercise of the right of association" as "a communication between individuals who join together
to collectively express, promote, pursue, or defend common interests." That definition defines
the purpose and activities of the Squirrel Busters precisely. Indeed, it is notew01thy that, unlike
its protection of the right of free speech, the Statute does not define the exercise of the right of
association as limited to or in connection with "a matter of public concern." Rather, the Statute
leaves to those who choose to associate the freedom to define what is a matter of public concern;
their very exercise of the right of association "to express, promote, pursue or defend common
interests" establishes that their exercise is about a matter of public concern.
47. The streets and public rights of way on which the Squi1Tel Busters conducted their
activities are traditional public forums for both speech and association, and "they have
immemorially been held in trust for the use of the public." Hag11e v. CIO, 307 U.S. 496, 515
(1939); Frisby v. Sch11ltz, 487 U.S. 474, 481 (1988). "Such space occupies a 'special position in
terms of First Amendment protection."' Snyder v. Phelps, 131 S. Ct. 1207, 1218 (2011).
Accordingly, state authority may not be used to prohibit persons from using such forums both to
express a point of view to the general public or to attempt to communicate that point of view on
an individual or group basis to those who pass by. Cantwell v. Connecticut, 310 U.S. 296, 308-
21
09 (1940); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907-908 (1982). Such speech is
none the less protected no matter that it is "provocative" and disputatious "or even stirs people to
anger." Terminiello v. Chicago, 337 U.S. I, 4 (1949); Git/ow v. New York, 268 U.S. 652, 673
(1925) (Holmes, J., dissenting) ("Every idea is an incitement"); Gregory v. City of Chicago, 394
U.S. 111, 112-13 (1969) (civil rights march through residential neighborhoods of Chicago
protected despite strong and potentially violent reaction by residents). Indeed, "the point of all
speech protection ... is to shield just those choices of content that in someone's eyes are
misguided, or even hurtful." Hurley v. Irish-American Gay, Lesbian and Bisexual Group of
Boston, Inc., 515 U.S. 557, 574 (1995); Snyder, 131 S. Ct. at 1219 (quoting Hurley). Speech
similarly is protected if its intent is to induce or even "coerce" persons to avoid dealing with
another's business, Claiborne Hardware, 458 U.S. at 91 O; Thornhill v. Alabama, 310 U.S. 88,
I 04-05 (1940), or even attacks a church or religion. Cantwell, supra.
48. Likewise, there can be no question that production, filming and distribution of
films, videos, CDs, etc., by whatever technology, is protected by the First Amendment. See
Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502-03 (1952); Brown v. Entertainment Merchants
Assn., 131 S. Ct. 2729, 2733 (2011).
49. Any attempt to prohibit or limit such protected activity on the basis of the content
of the speech is highly disfavored, is subject to "strict scrutiny," can be justified only by the most
compelling of government interests, and only by the means least restrictive of the speech at
issue. Peny Educ. Assn. v. Peny Local Educators' Assn., 460 U.S. 37, 45 (1983); Frisby v.
Schultz, 487 U.S. at 482. To be sure, where the legislature attempts to regulate in furtherance of
an interest unrelated to the content of the speech itselt: such as to permit the free flow of traffic,
to limit noise, or to protect public safety, the First Amendment requires a lesser or "intermediate
22
scrutiny" and pennits regulation of the time, place, and manner of expression that is "narrowly
tailored" to serve a "significant" government interest and that leaves open ample alternative
channels of communication. Peny, 460 U.S. at 44-46; Frisby, 487 U.S. at 481. A more speech-
protective standard is applied, between strict and intennediate scrutiny, however, when a party,
such as plaintiff here, asks a court to act 011 its own, witho11t legislative a11thorizatio11, to prohibit,
let alone impose time, place or manner limitations on speech by entering a court injunction. In
the words of the Supreme Court:
[W]hen evaluating a content-neutral injunction, we think that our standard time,
place, and manner analysis is not sufficiently rigorous. We must ask instead
whether the challenged provisions of the injunction burden no more speech than
necessary to serve a significant government interest.
Madsen v. Wome11 's Health Ce11ter, 512 U.S. 753, 765 (1994). As summarized by Chief Justice
Roberts, the First Amendment requires that courts "must give the benefit of any doubt to
protecting rather than stifling speech." Federal Electio11 Comm. v. Wisconsi11 Right to life, Inc.,
551 U.S. 449, 469 (2007) (Robetts, C.J.), quoted in Citizens U11ited, 558 U.S. at 327.
50. These principles were addressed by the Supreme Court of Texas m a
comprehensive opinion in Operation Rescue - Natio11al v. Planned Parenthood of Houston a11d
Southeast Texas, Inc., 975 S.W.2d 546 (Tex. 1998). In that case, the Coutt reviewed a limited
injunction that created buffer zones of 13-126 feet around abortion clinics and the homes of
clinic doctors, limited attempts by demonstrators to converse with people entering or leaving the
clinics, imposed time limitations of 45 minutes per day, and prohibited the use of sound
amplification equipment within 100 feet of the residences. Applying the heightened "burden no
more speech than necessary" standard of Madsen, and not the "narrowly tailored" standard of
Frisby v. Schultz, the Court held that a heavy burden rested on the plaintiffs to prove the specific
need for any restrictions beyond those that were conceded against actual trespassing, blocking
23
the premises, inhibiting access, and directly harassing patients. Id. at 562. The Comi held that
the trial court could not assume that there was a need for any buffer zone at all unless the
plaintiffs could prove the necessity of such limitation. Id. at 562. Central to its holding was that
no injunction could prohibit the protest demonstrations or impose an undue burden upon them.
The Court then struck some of the buffer zone limitations, affirmed or modified others, held that
the injunction must permit up to two demonstrators limited, non-harassive communication within
the clinic buffer zones with those entering or leaving the clinic, and upheld the sound
amplification restriction. Id. at 567. With respect to the residences of the doctors, what is most
notable is that the Court did not hold that that no activity could go forward in such areas. Id. at
568. While the Texas Court recognized that in Frisby v. Schultz, the Supreme Court had upheld
a local ordinance that imposed a total ban on picketing directed exclusively to private residences,
the Texas Court required only that a small buffer zone be created. Id. at 568. l11e obvious
distinction, as explained in Jvfadsen, was that unlike Schultz, but like Madsen, there was no
statute in the Operation Rescue case creating such a ban, and Jviadsen required a higher level of
First Amendment protection. See Madsen, 512 U.S. at 761-65.
51. This case is governed by Operation Rescue. Here, not only was there no statute
governing the issue and providing clear legislative guidance, but the municipality first enacted an
ordinance, but then repealed it in light of the very First Amendment arguments presented here.
Under Operation Rescue, therefore, it was perfectly proper for the Squirrel Busters group to
cmry out its activities in the vicinity of Rathbun's place of business/residence. See Operation
Rescue, 975 S.W.2d at 567-69.
52. Moreover, there are two other key factors present in this case. First, the activity
of the Squitrel Busters group was not unde1iaken solely or primarily to protest Rathbun's activity
24
to Rathbun and his wife themselves, but rather to create the material for a documentary film or
video to be shown to others. The Court in Frisby made this specific point:
Here ... the picketing is natrnwly directed at the household, not the public. The
type of picketers banned by the Brookfield ordinance generally do not seek to
disseminate a message to the general public, but to intrnde upon the targeted
resident, and to do so in an especially offensive way.
Frisby, 487 U.S. at 486. Here, the acts of the Squirrel Busters group were ultimately directed to
the public, resulting in the production and Internet distribution of documentary films. Indeed,
Rathbun himself then produced and distributed on the Internet his own videos of the dispute.
The point of the First Amendment, of course, is precisely that such disputes and controversies be
submitted to the market place of ideas, as it was, and not to the judiciary, as plaintiff now seeks
to do. New York Times v. S11l/iva11, 376 U.S. 254, 270 (1964) ("The First Amendment
'presupposes that right conclusions are more likely to be gathered out of a multitude of tongues,
than through any kind of authmitative selection"') (quoting Judge Learned Hand in United States
v. Associated Press, 52 F.Supp. 362, 372 (S.D.N.Y. 1943)).
53. The second key factor in this case is that Rathbun's "home" was also the site of
his "business" activity, which was precisely the target of the protest and the proposed
documentary. Indeed, not only did Rathbun carry on his business activity of providing
"independent Scientology" services for a fee at his "residence," he also used those premises as
the visual setting to create videos attacking the Church and its leadership, which he posted on the
Internet, and to conduct interviews with the media in his place of business/residence, resulting in
photographs and videos of the inside of the premises being circulated in the media with
Rathbun's approval. By doing so, Rathbun forfeited any claim that he was entitled to residential
privacy. Put another way, Rathbun cannot insulate his business from protest or inquiry merely
by choosing to live where he works. The Frisby Comt itself foresaw just such a distinction:
25
Pmiicular hypothetical applications of the ordinance to, for example, a patiicular
resident's use of his or her home as a place of business or public meeting ...
present somewhat different questions. Initially, the ordinance by its own terms
may not apply in such circumstances, since the ordinance's goal is the protection
of residential privacy ... and since it speaks only of a 'residence or dwelling,' not
a place of business .... [T]he constitutionality of applying the ordinance to such
hypotheticals remains open to question.
487 U.S. at 488.
54. It thus cannot be controverted that the speech and associative acts of the Squin-el
Busters group come within the scope of the anti-SLAPP statute, and pe1mit CS! to bring a
motion to dismiss the FAP under the statute. We further show below that under the authority
here cited as well as other case law, plaintiffs claims must be dismissed under the expedited
procedures created by the Statute.
2. CSl's Retention, Through Counsel, Of Licensed Private Investigators To Investigate
The Actions And Threats Of Rathbun Preliminary To Possible Institution Of
Litigation Or In Defense Of Potential Litigation, Is Protected By The First
Amendment And The Anti-SLAPP Statute
55. The FAP also rests its claims upon CSI's retention and use of licensed private
investigators. As the management entity for the Scientology religion, it is CSI's responsibility,
inter alia, to protect and defend the religion and its churches. CS! was confronted with
numerous public acts by Rathbun for which CS! necessarily was required to consider possible
communications to law enforcement officials or the institution of civil litigation, as well as by
threats of litigation for which CS! would be responsible to defend. Among such acts were:
Rathbun's solicitation of others to steal materials and infonnation from CS! or other churches
and provide it to him, for which he promised he would "protect" such persons; Rathbun' s
meeting and potential conspiracy with numerous others pursuant to offers and threats; Rathbun's
misappropriation of Scientology intellectual propetiy; Rathbun's repeated grossly defamatory
statements about CS! and other Scientology churches and officials; Rathbun's voluntary, indeed
26
eager, patticipation as a witness in numerous lawsuits against Scientology churches and affiliated
entities; Rathbun's ultimately unsuccessful attempts to instigate ctiminal investigations of
Scientology churches and officials, both in the United States and in foreign countties; and others
as stated above.
56. Under the anti-SLAPP statute, "exercise of the right to petition" means activities
such as ( 1) communications in or pertaining to a judicial proceeding, (2) communications in
connection with an issue under consideration or review by a legislative, executive, judicial, or
other governmental body, (3) communications reasonably likely to encourage such consideration
or review, and ( 4) communications reasonably likely to enlist public participation in an effort to
effect such consideration or review. Tex. Civ. Prac. & Rem. Code 27.001 (4).
57. Before engaging in the institution and defense of litigation or communications to
government officials, of course, a person or entity has a responsibility to investigate the facts
thoroughly to insure that its communications are accurate. Such pre-litigation or pre-petition
investigation and surveillance necessarily is incidental to, "pertains" to, is "in connection with"
and is "likely to encourage consideration or review" of any petition to a judicial or administrative
body, and thus squarely is encompassed by the First Amendment right to petition and within the
ambit of the anti-SLAPP statute, especially given the Statute's injunction that its terms "shall be
construed liberally to effectuate its purpose and intent fully." Tex. Civ. Prac. & Rem. Code
27.0l l(b).
58. The issue was addressed by the California Comt of Appeals, applying the
California anti-SLAPP statute upon which the Texas statute was substantially modeled, in the
case of Tichinin v. City of Morgan Hill, 177 Cal.App.4th 1049 (2009). The coutt held that" ...
non-petitioning conduct is within the protected 'breathing space' of the right of petition if that
27
conduct is ( 1) incidental or reasonably related to an actual petition or actual litigation or to a
claim that could ripen into a petition or litigation and (2) the petition, litigation, or claim is not a
sham." Ti chin in, 177 Cal. App. 4h at l 068. The court noted that in that case "the challenged
pre-litigation conduct involves the investigation of a possible conflict of interest due to an
alleged inappropriate romantic relationship between public officials," and held that the
investigation of even such intimate matters was "within the protected 'breathing space' of the
right to petition." Id. at I 068. As the court explained:
When one suspects that another has caused harm, a preliminary investigation is
usually necessary in order to know whether one has a potential legal claim,
evaluate the likelihood of success, and decide whether or not to assert it.
Consequently, the investigation of a potential claim is nonnally and reasonably
patt of effective litigation, if not an essential part of it. Indeed, as Tichinin
correctly notes, an attorney has a duty to investigate the facts underlying a client's
claims and can be sanctioned for failing to do so. [Citations omitted.] In our view,
moreover, the prelitigation investigation of a potential claim is no less incidental
or related to possible litigation than prelitigation demand letters and threats to sue,
which are entitled to protection. In fact, such letters and threats are themselves
likely to be the result of a prelitigation investigation ...
Id. at l 068-69.
59. Significantly, the comt also held that the investigative conduct was protected not
only as incident to the right to petition, but also as a right of free speech: "we conclude that
hiring an investigator can also be considered protected under the right of free speech." Id. at
1074.
60. Here CS l's retention and use of private investigators was well justified under the
circumstances, as fully described above.
28
B. THE CLAIMS ALLEGED IN THE FAP MUST BE DISMISSED
1. The IED Claim Is Barred By Common Law And The First Amendment
61. As we have seen, plaintiff's !ED claim is premised upon the actions of the
Squitrnl Busters group, the retention and use of private investigators, and the alleged acts of
sending plaintiff a sex to/ and anonymously attacking her on the Internet. The acts alleged are
not susceptible to a claim of !ED as a matter of ordinary Texas common law. In addition, the
claims against CS! must be dismissed under the First Amendment.
a. Texas common law precludes the claims
62. To prevail on a claim for intentional infliction of emotional distress, a plaintiff
must establish that (I) the defendant acted intentionally or recklessly; (2) its conduct was
extreme and outrageous; (3) its actions caused her emotional distress; and (4) the emotional
distress was severe. Kroger Tex. Ltd. P'ship v. Suberu, 216 S.W.3d 788, 796 (Tex. 2006); Tiller
v. Mclure, 121 S.W.3d 709, 713 (Tex. 2003) (per curiam). An action that is intentional,
malicious, or even criminal does not, standing alone, mean that it is extreme or outrageous for
purposes of intentional infliction of emotional distress. Brewer/on v. Dabymple, 997 S. W.2d
212, 215- 16 (Tex. 1999). The conduct must be "so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community." Id. at 216. It is for the court to determine in the
first instance whether the defendant's conduct may reasonably be regarded as so extreme and
outrageous as to permit recovery. Id.
63. Recently, the Texas Supreme Coutt clarified that an intentional infliction of
emotional distress claim is considered a "gap-filler" claim and cannot be used "'to circumvent
'Ms. Rathbun admitted at the evidentiary hearing that there was no return address on the box
which contained these objects. Cartwright Aff. iJ 28, Exh. 7 at 207:12-20.
29
the limitations placed on the recovery of mental anguish damages under more established tort
doctrines.'" Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 (Tex. 2005) (quoting Hojfmann-
la Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004)). The tort's purpose is '"to
supplement existing forms of recovery by providing a cause of action for egregious conduct' that
might otherwise go unremedied." Zeltwanger, 144 S.W.3d at 447 (quoting Standard Frnit &
Vegetable Co. v. Johnson, 985 S.W.2d 62, 68 (Tex. 1998)). In Zeltwanger, the Court stated:
"Where the gravamen of a plaintiff's complaint is really another Iott, intentional infliction of
emotional distress should not be available." Id. This is true even if plaintiff does not assert a
claim for the other tort in her petition-such as defamation in this instance--or asserts the other
tort but does not prevail-such as Title VII of the Civil Rights Act of 1964. See id. at 448.
Among the cases cited as authority for this statement, the Texas Supreme Court referenced a
Washington Supreme Comt assault case that held damages for emotional distress could not be
awarded as part of the assault damages. Zeltwanger, 144 S.W.3d at 448 (citing Rice v. Janovich,
742 P.2d 1230, 1238 (Wash. 1987)); see also Conley v. Driver, 175 S.W.3d 882, 887 n.4 (Tex.
App.-Texarkana 2005, pet. denied) (explaining that intentional infliction of emotional distress
Iott "cannot be used as an alternative to some other, more conventional Iott [that] fits the facts
but might be subject to some structural impediment").
64. It is at once obvious that plaintiffs attempt to plead an !ED claim is defective.
First, as plaintiffs FAP demonstrates, plaintiff pleads the same facts in favor of four separate
causes of action. If, as plaintiff alleges, the alleged facts even arguably suppo1t claims for
invasion of p1ivacy or interference with contract, then a claim for !ED is precluded. Clearly, the
gravamen of plaintiffs complaint, defective though it is, is her claim of intrusion on p1ivacy.
Moreover, plaintiffs FAP and atftdavit demonstrates that plaintiff in reality asse1ts a claim for
30
defamation, but attempts to disguise it as an !ED claim. (The obvious reason is that a defamation
claim not only would be without merit,
3
but clearly would implicate the anti-SLAPP statute,
which plaintiff seeks, unsuccessfully, to avoid.). Thus, plaintiff complains that she has been
"defamed" (FAP if 14), been the subject of "published bizarre and sometimes vile allegations,"
including that she is a "sexual pervert" and a man who had a sex change operation. Rathbun Aff.
ir 12. Thus, plaintiffs JED claim must be dismissed because her claims in reality are other torts.
See Draker v. Schrieber, 271 S.W.3d 318, 322-24 (Tex. App.-San Antonio 2008, no pet.) (the
gravamen of a vice-principal's claim for intentional infliction of emotional distress against
students who fabricated an offensive website was defamation, and thus the separate claim for
intentional infliction of emotional distress would not lie even though the defamation claim was
dismissed).
65. Second, plaintiffs allegations concerning the activities of_ the Squirrel Busters
group and CS I's retention and use of private investigators do not rise to the level of outrageous
conduct. Texas comis apply the criteria of the Restatement (Second) of Tmis to claims of !ED.
Brewer/on v. Da/Jymple, 997 S. W.2d at 215 ("When this Court recognized a cause of action for
intentional infliction of emotional distress, we adopted the parameters of that to1i as set forth in
the Restatement (Second) of Torts 46(1 )"). The Restatement, and the Texas cases applying it,
have insisted that the element of outrageousness be confined to the most extreme depmiures from
civilized behavior:
The liability clearly does not extend to mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities. The rough edges of our society
3
As one example, not only does the FAP not even allege a defamation claim, but it utterly fails
to allege the elements of such a claim, including the existence of constitutional actual malice as
mandated by New York Times v. S11lliva11, 376 U.S. 254, 280-81 (1964), and its progeny. It
ce1tainly fails to meet the heightened standard of clear and specific evidence to survive a motion
under the anti-SLAPP statute.
31
are still in need of a good deal of filing down, and in the meantime plaintiffs must
necessarily be expected and required to be hardened to a certain amount of rough
language, and to occasional acts that are definitely inconsiderate and unkind.
There is no occasion for the law to intervene in every case where someone's
feelings are !uni. There must still be freedom to express an unflattering opinion,
and some safety valve must be left through which irascible tempers may blow off
relatively harmless steam.
Id., Comment d. Thus, for example, m a case where a student plaintiff filed an internal
complaint for sexual assault by another attendee at a party of a professor, the Fifth Circuit,
applying Texas law, held that the professor's subsequent conduct was not outrageous:
Cantu's proffered evidence is that Ethridge embarked on a course of conduct
intended to intimidate her, which included the following acts: ( 1) following her in
the hallways; (2) obstrncting her passage from a water fountain; (3) showing up in
a classroom and positioning himself where Cantu usually sat so that she could not
avoid encountering him and (4) repeatedly going in and out of a room where she
was taking a make-up exam, which affected her performance. Assuming its
veracity, and that the jury fully believed every word of it, this evidence simply
could not, as a matter of law, be constrned by reasonable jurors as proof of
conduct that is "beyond all possible bounds of decency ... atrocious, and utterly
intolerable in a civilized community .... "
Cantu v. Rocha, 77 F.3d 795, 810 (5th Cir. 1996).
66. Neither the Squirrel Busters group nor the investigators invaded plaintiffs house,
wiretapped her phones, used any form of microphone to overhear private conversations of
plaintiff or her husband inside or on the porch of the place of business/residence, bugged her
premises, engaged in physical force or coercion, or engaged in any kind of even arguably illegal
activity. Rather, their actions were within the broad sweep of First Amendment protections. But
whether protected by the First Amendment explicitly or not, the acts are not uncommon in our
disputatious society, and can in no sense be deemed outrageous in a civilized community, as a
matter oflaw.
67. The use of private investigators in such circumstances not only is common place,
but indeed is a favored tool to insure that baseless claims of wrongdoing are not made in either
32
judicial or administrative fornms. See, e.g., Tho1pe v. lvf11tual of Omaha, 984 F.2d 541, 545 (I st
Cir. 1993) (Boudin, J.) ("investigations of this nature are commonplace ... However distasteful
the notion of surveillance, Mutual of Omaha's conduct in relation to Thorpe was not 'extreme or
outrageous' or "utterly intolerable in a civilized community'"); see Strickland v. Washi11gto11,
466 U.S. 668, 690--691 (1984) (criminal defense attorneys have constitutional obligation to
perf01m adequate investigation); Bakker v. Gr11tman, 942 F .2d 236, 239-242 (4th Cir. 1991) (in
civil cases, counsel has duty to investigate case); Kraemer v. Grant County, 892 F.2d 686, 689-
690 (7th Cir. 1990) (hiring private investigator satisfied counsel's duty to investigate claim
before filing complaint).
b. The First A111e11d111e11t requires that the claims be dismissed
68. Ignoring all the above well established First Amendment doctrine, plaintiff seeks
to recover for claims of intentional infliction of emotional distress and invasion of privacy for the
acts of the Squin-el Busters group and for the retention and use of private investigators, claiming
that the acts were so extreme as to meet the outrageousness element of the tort. As we have
shown, both are clearly protected by the First Amendment. Moreover, plaintiff's attempt to
invoke the Iott of IED to reach allegedly "extreme" or "outrageous" speech is condemned by
definitive decisions of the United States Supreme Court. Thus, in H11stler 1\fagazi11e v. Falwell,
485 U.S. 46, 52 (1988), the Comt held that the tort of "outrageous conduct" categorically cannot
be applied to distinguish between activity that is protected or unprotected under the First
Amendment. Falwell sued for intentional infliction of emotional distress arising from the
publication of a parody published in Hustler Magazine, alleging that the parody was so
despicable and hurtful to him that a jury could determine that it crossed the line into unprotected
conduct by applying the rubric of "outrageous conduct." The Court held that the term
33
"outrageous" could not be applied to differentiate between protected and unprotected speech (id.
at 55):
[W)e doubt that there is any such standard, and we are quite sure that the
pejorative description "outrageous" does not supply one. "Outrageousness" in the
area of political and social discourse has an inherent subjectiveness about it which
would allow a jury to impose liability on the basis of the juror's tastes or views, or
perhaps on the basis of their dislike of a particular expression. An
"outrageousness" standard thus runs afoul of our longstanding refusal to allow
damages to be awarded because the speech in question may have an adverse
emotional impact on the audience.
69. The Comt's fear that the "inherent subjectiveness" of the term "outrageous"
"would allow a jury to impose liability on the basis of the jurors' tastes or views," id., is even
more apt where the disputed speech relates to religious belief and practice. Religious beliefs
tend to be among the most strongly held and exclusive points of view, and they uniquely
engender controversy, hostility, rivalry and prejudice:
In the realm of religious faith, and in that of political belief, sharp differences
atise. In both fields the tenets of one man may seem the rankest etTOr to his
neighbor. To persuade others to his own point of view, the pleader, as we know,
at times, resorts to exaggeration, to vilification of men who have been, or are,
prominent in church or state, and even to false statement. But the people of this
nation have ordained in the light of history, that, in spite of the probability of
excesses and abuses, these liberties are, in the long view, essential to enlightened
opinion and right conduct on the part of the citizens of a democracy.
Cantwell v. Connecticut, 310 U.S. 296, 310 ( 1940).
70. It is objectively unreasonable to expect that jurors would be able to put aside their
own beliefs and biases when confronted with opposing or novel religious claims, especially
given the well-known history of pubic opprobrium for unconventional religious societies. See,
e.g .. Everson v. Board of Education of Ewing Tp., 330 U.S. I, 8-14 (1947); Murdock v.
34
Commonwealth of Pennsylvania, 319 U.S. l 05, 116 (1943); Clzurclz of Scientology Flag Service
Organization, Inc., v. C i ~ y of Clearwater, 2 F.3d 1514, 1531 (11th Cir. 1993) (Finding
substantial evidence that City ordinance was enacted and gerrymandered for purpose of driving
Church out of Clearwater). Certainly, the "pejorative description 'outrageous' does not supply"
the principled standard to distinguish constitutional from unconstitutional speech about religious
practices, any more than "in the area of political and social discourse." Falwell, 485 U.S. at 47.
71. This point was highlighted in the more recent case of Snyder v. Phelps, 131 S. Ct.
1207 (2011). There the father of a deceased Iraqi veteran sued a fundamentalist church and its
members for claims of IED and intrusion on privacy for demonstrations and picketing of his
son's funeral with signs condemning the United States for toleration of homosexuality and
stating that God kills American soldiers as punishment. Emphasizing that the demonstrations and
picketing, as in the instant case, were "on public land next to a public street" (id. at 1217) and
thus were "entitled to special protection under the First Amendment" (id. at 1219), the Comi
once again rejected the use of the concept of outrageous conduct as a basis to impose liability
even for hateful and obnoxious speech, stating "in public debate [we] must tolerate insulting and
even outrageous speech in order to provide adequate 'breathing space' to the freedoms protected
by the First Amendment." Id. at 1219, quoting Boos v. Bany, 485 U.S. 312, 322 (1988).
Turning to the breach of privacy claim, the Court likewise held the claim batTed by the First
Amendment: "[t]he Constitution does not permit the government to decide which types of
otherwise protected speech are sufficiently offensive to require protection for the unwilling
listener or viewer." Id. at 1220.
72. In addition to the alleged acts of the Squi11"el Busters group and the private
investigators, plaintiffs affidavit (but not her FAP) alleges that she received offensive matetials
35
tluough the mail, suggesting that these acts were carried out by CSL That is false. No such acts
were directed, authorized, or ratified by CSL Cartwright Aff. if 28. CS! knew nothing about
them and had no responsibility for them. Plaintiff herself testified that there was no indication
on the boxes containing the offensive materials who sent them to her. Cartwright Aff., Exh. 7 at
20-7: 12-20. Once again, plaintiff is utterly unable to show "clear and specific evidence" that
CS! did so; indeed, plaintiff cannot present even a scintilla of evidence, but only her speculative
allegation.
73. To the extent that such acts of sending such materials may have been undetiaken
by individual Scientologists who were greatly offended by the acts of the Rathbuns, a
proposition for which there also is not a scintilla of evidence, there is no and can be no evidence
linking CSI or any defendant to them. The First Amendment prohibits plaintiff from suing CS!
for acts allegedly undertaken by individual Scientologists merely because CSI also was engaged
in protected First Amendment activity with respect to the Rathbuns, even if that activity involved
sharp rhetoric and non-violent confrontational tactics. NAACP v. Claiborne Hardware Co., 458
U.S. 886, 930-31 (1982) (holding that the NAACP could not be held liable in tort for the violent
acts even of its agents, including its Field Secretary, undertaken in the course of a boycott
protected by the First Amendment, because the organization had not authorized, directed or
ratified such acts). Claiborne Hardware limits derivative liability to protect freedom of
association. As the Court explained: "The rights of political association are fragile enough
without adding the additional threat of destruction by lawsuit." Id. at 931-32.
4
4
Cases following Claiborne Hardware include In re Asbestos School Litigation, 46 F.3d 1284,
1290-91 (3d Cir. 1994) (holding that Claiborne's standard was "meant to have general
applicability," even to a business corporation such as Pfizer); Hvamstad v. Suh/er, 727 F. Supp.
511, 516 (D. Minn. l 989) ("the Supreme Court has limited the extent to which persons may be
c1iminally punished or subjected to civil liability for the unlawful behavior of their associates")
36
74. Here, unlike Claibome Hardware, there is no evidence that even a church staff
member undertook the alleged acts upon which liability is alleged. A fortiorari, the Church
cannot be tainted by the alleged actions of unknown individuals. Plaintiff has not shown and
cannot show, by "clear and specific evidence," or at all, that CS! approved, authorized, or ratified
the alleged conduct.
2. The Privacy Claims Fail to State a Valid Claim and Also are Barred by the First
Amendment
75. Plaintiff attempts to assert two privacy claims. The first - Public Disclosure of
Private Facts (FAP if 40) - is unsupported by a single allegation of what private facts defendants
allegedly disclosed to the public. There were none. While plaintiff alleges that the defendants
anonymously accused her of being a "sexual pervert" or of being a man who had a sex change
operation, she characterizes those "disclosures" as "bizarre" and "sick." Clearly plaintiff does
not claim that the disclosures were true disclosures of private facts, and thus no privacy claim is
established. Significantly, plaintiff has not alleged a cause of action for defamation.
76. Plaintiffs second privacy claim is for intrusion on seclusion. The claim is barred
by the First Amendment for all the reasons discussed above. Moreover, the claim is insut1icient
under Texas common law.
77. The elements of a cause of action for invasion of privacy by intrusion upon
seclusion are(!) an intentional intrusion upon a person's solitude, seclusion, or private affairs or
concerns, (2) that would be highly offensive to a reasonable person, and (3) as a result of which
the person suffered an injury. See Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex. 1993); K-
1\1art Co1poration Store No. 7441 v. Trotti, 677 S.W.2d 632 (Tex. App.-Houston [Isl Dist.]
(citing to Claibome), a.ff'd, 915 F.2d 1218 (8th Cir. 1990); Tsilimos v. NAACP, 370 S.E.2d 816,
818 (Ga. 1988).
37
l 984, writ ref. n.r.e.); Gill v. Snow, 644 S.W.2d 222 (Tex. App.-Ft. Worth l 982, no writ.);
Jennings v. Minco Technology Labs, Inc., 765 S.W.2d 497, 500 (Tex. App.-Austin 1989, writ
denied); see also Farrington v. Sysco Food Servs., Inc., 865 S.W.2d 247, 253 (Tex. App.-
Houston (lst Dist.] l 993, writ denied).
78. Intrnsion upon seclusion is "generally associated with either a physical invasion
of a person's property or eavesdropping on another's conversation with the aid of wiretaps,
microphones, or spying." Vaughn v. Drennon, 202 S.W.3d 308, 320 (Tex. App.-Tyler 2006, no
pet.); see Texas Comptroller of Public Accounts v. Attorney General of Texas, 354 S.W. 3d 336,
364 (Tex. 2010). For example, in Cornhill Ins. PLC v. Va/samis, 106 F.3d 80, 85 (5th Cir.1997),
cert. denied, 522 U.S. 818 (1997), the Fifth Circuit Court of Appeals addressed a claim for
invasion of privacy where offensive comments and inappropriate advances were made toward
the plaintiff. The court held that the plaintiff could not recover under an invasion of privacy
cause of action based on the intentional intrnsion upon her solitude or private affairs because she
did not allege a "physical invasion of a person's prope11y or eavesdropping on another's
conversation with the aid of wiretaps, microphones, or spying." Id.; see also Clayton v. Wisener,
190 S.W.3d 685, 696-697 (Tex. App.-Tyler 2005, pet. denied).
79. In Vaughn, the court held that the defendant's act of watching the plaintiff with
binoculars from across the street while the plaintiff was outside her house or standing in front of
her kitchen window was not an intrnsion into privacy because "[ o ]ne cannot expect to be entitled
to seclusion when standing in front of a large window or while outside." Vaughn, 202 S.W.3d at
320. Similarly, filming of a person's residence and distributing the film or video did not
constitute an intrnsion on privacy, because such a "broadcast provided the public with nothing
more than could have been seen from a public street." Wehling v. Columbia Broadcasting
38
System, 721 F.2d 506, 509 (5th Cir. 1983); see also Webb v. Overbrook Owners Assn., Inc., 298
S.W.3d 374, 387 (2009) (holding that property owner had "lawful right" to install surveillance
cameras looking out from his property to adjoining property, and that such surveillance did not
constitute intrusion on privacy of adjoining owner).
80. Here the affidavits of the SquitTel Busters and the private investigators make clear
that no intrusion of the Rathbuns' residence occurred. First, plaintiff is not entitled to assert a
claim of intrusion into her residence, qua residence, precisely because the building in question
was the Rathbuns' place of business where they conducted a "squitTel Scientology" practice for
money. It also was the place from which Marty Rathbun filmed videos, showing the premises
and attacking Scientology and its leadership, which he then distributed over the Internet.
Likewise, Rathbun invited representatives of the media into the premises where they interviewed
and filmed him. Having invited the public into his "residence," Rathbun, and his wife, can
hardly pretend that their residence was equivalent to Walden Pond.
81. Thus, as noted ante at 25, Rathbun cannot insulate his business and public media
activities from inquiry merely by choosing to live where he works. By doing so, Rathbun
forfeited any claim that he or his wife was entitled to residential privacy. Rather, any claim of
intrusion must be judged from the point of view that the Rathbuns' place of business/residence
was entitled to no more privacy than that accorded to any business premises.
82. Second, the acts of the private investigators and the SquitTel Busters meticulously
followed the appropriate limitations upon their activities. While the SquitTel Busters and private
investigators may have filmed or viewed the building from a distance, and while the SquilTel
Busters demonstrated on the nearby street, no person invaded the building, engaged in electronic
surveillance, used any form of microphone to overhear pdvate conversations of plaintiff or her
39
husband inside or on the porch of the place of business/residence, or obtained a view of the
inside of the premises by the naked eye, camera, or binoculars. Plaintiff herself has conceded
that she has no knowledge of any such intrnsion (Cartwright Aff., Exh. 7 at 179: 13-25, 182:6-8),
thereby acknowledging that she cannot meet the statutory requirement of showing clear and
specific evidence of t011ious acts by CSL The only images of the Rathbuns were obtained when
they were outside the building, in public view, and/or on public property. See affidavits of Allan
Cmiwright, John Allender, David Lubow, Monty Drake, and Steven Sloat.
83. Plaintiff has placed special emphasis on her allegations that CS! retained
defendant Steven Sloat to engage in surveillance of the new place of business/residence to which
plaintiff and her husband recently moved. But as plaintiff herself acknowledges, any such
surveillance has been "from a distance." Rathbun Aff. if 15. Indeed, as Mr. Sloat carefully
explains, his actions in no way have intrnded into any protected privacy of the business/residence
of plaintiff or her husband. Mr. Sloat's assignment was limited to determining the extent to
which "Rathbun was engaged in some sort of practice similar to Scientology of his own creation
at that location and was seeing clients there." He rented an adjacent property on which he
installed "three low resolution cameras in the hopes that a camera could determine when a car
mTived at the parking area of Mr. Rathbun's property adjacent to my property. These were
cameras typically used in deer tuns, had a focal length of about 15-20 feet and could not be
adjusted. There was no zoom capability. Objects much beyond the focal length gradually
became obscure." The cameras were not intended to, could not, and did not surveil the building
itselt:
I placed one camera pointed towards the driveway area next to Rathbun's
premises, one towards the road facing away from his premises to record who was
coming onto the property, and one on a deer stand on the property, facing away
from his prope11y. The cameras never pointed directly at Rathbun's office/house .
40
.. The camera facing Rathbun' s premises was 60-70 yards from the area where a
car might be parked. The distance was much too great for the device to detect
motion on his property, and therefore took no pictures caused by motion on his
prope1iy. The camera pointed through trees and saplings towards the driveway
and shed area. The camera pointing towards his prope1ty was not useful for the
intended purpose, as the resolution was poor, and the camera had no zoom or
focal adjustment capabilities. [Sloat Aff. iii! 7-8.]
84. In mid-July, the cameras were removed and the project was abandoned. Sloat
Aff. iJ 10. Sloat "never saw the plaintiff, ... never talked to her, never had any communication
with her and never photographed her. The subject of the investigation was not Monique
Rathbun. Rather, the subject was Mark Rathbun and the object was Mark Rathbun's associations
and business dealings." Sloat Aff. iJ 11.
85. As a matter of law, none of the actions undertaken by Sloat were actionable as
intrusion on privacy. Webb, 298 S.W.3d at 387 (property owner had "lawful right" to install
surveillance cameras looking out from his propetiy to adjoining property; such surveillance did
not constitute intrusion on privacy of adjoining owner).
86. Given that the actions of the SquilTel Busters and the private investigators were
well within the proper boundaries, and given the First Amendment protection afforded their
activities, the plaintiffs claim of intrusion on privacy must be dismissed as a matter of law.
3. Plaintiff's Claim for Tortions Interference With Contract is Defective on its Face
87. A plaintiff asserting a totiious interference with contract claim must prove: (I) a
contract exists; (2) the defendant "willfully and intentionally interfered with that contract"; (3)
the defendant's interference proximately caused the plaintiffs damage; and (4) the plaintiff
"suffered actual damage or loss." Butnaru v. Ford Motor Co., 84 S.W.3d 198, 207 (Tex. 2002);
Prudential /11s11ra11ce Company of America v. Financial Review Services, Inc., 29 S.W.3d 74, 77
(Tex. 2000). To prove a claim for tortious interference with an employment contract, a plaintiff
41
must prove: (1) the existence of a business relationship subject to interference; (2) the occull"ence
of an act of interference that was willful and intentional; (3) the act was a proximate cause of the
plaintiffs injury; and ( 4) actual damage or loss occutTed. KTRK Television, Inc. v. Fowkes, 981
S.W.2d 779, 790 (Tex. App.-Houston [!st Dist.] 1998, pet. denied). The interfe1ing party must
have had either actual knowledge of the existence of the contract and of the plaintiffs interest or
knowledge of such facts and circumstances as would lead a reasonable person to believe in their
existence. See Hill v. Heritage Resources Inc. 964 S.W. 2d 89, 123 (Tex. App.-El Paso 1997,
pet. denied).
88. While plaintiff asse1is a claim for tortious interference with contract (F AP ii 38),
she alleges no facts to support it. She alleges that she has a valid contract of employment, but
does not allege that the contract has been rendered ineffective by any action of defendants. She
does not allege that she is not still employed pursuant to that contract. She has not alleged that
her compensation or benefits were reduced under the contract. She does not allege that she was
not promoted or considered for promotion. She does not allege how any defendant attempted to
or succeeded in interfering with her employment. While she alleges that "she has incull"ed actual
damage or loss," she does not hint at what that damage was.
5
In short, plaintiff does not allege
and cannot show even a scintilla of evidence to support her cause of action, let alone the "clear
and specific evidence" mandated by the anti-SLAPP statute. Plaintiff's claim clearly is wholly
and completely insufficient and must be dismissed.
5
While plaintiff alleges no relevant or material facts that would support her cause of action for
intentional interference with contract, she does allege that the cause of action is based upon "the
defendants' misconduct, as described above" (FAP ir 38), i.e., based upon the very allegations
that purpoti to support her other causes of action. It thus is clear that plaintiff's cause of action
for interference with contract likewise "is based on, relates to, or is in response to [defendants']
exercise of the right of free speech, right to petition, or right of association" (Tex. Civ. Prac. &
Rem. Code 27.003(a)), and is subject to a motion to dismiss under the Statute.
42
VI. REQUEST FOR DAMAGES, COSTS, AND SANCTIONS
89. When a coutt dismisses a SLAPP lawsuit pursuant to Chapter 27, the couit 11111st
award the movant its "couit costs, reasonable attorney's fees, and other expenses incurred in
defending against the legal action as justice and equity may require." Tex. Civ. Prac. & Rem.
Code 27.009(a)(I).
90. Therefore, CSI requests this Court to award it its costs, attorney's fees, and
expenses incurred in defending the plaintiff's frivolous lawsuit.
91. Also upon dismissal of a case under the anti-SLAPP statute, the court must award
"sanctions against the party who brought the legal action." Those sanctions must be set in an
amount "sufficient to deter the party who brought the legal action from bringing similar actions."
Id. 27.009(a)(2).
92. CSI requests an award of sanctions against the plaintiff. Sanctions would deter
the plaintiff from continuing to pursue this and other such frivolous lawsuits aimed at shutting up
those who exercise their right to petition and their right to free speech.
CONCLUSION
For all the reasons stated above and in the supporting affidavits and exhibits, the special
motion to dismiss under the anti-SLAPP Statute should be granted in its entirety, and an order
should be entered awarding defendant CSI its costs, attorney's fees, and expenses incurred in
defending the plaintiff's frivolous lawsuit and imposing sanctions upon the plaintiff in an amount
sufficient to deter such conduct.
43
Respectfully submitted,
DA VIS, CEDILLO & MENDOZA, INC.
McCombs Plaza, Suite 500
755 E. Mulberry Avenue
San Antonio, Texas 782I2
Telephone: (210) 822-6666
Telecopier: (210) 822-1I5 I
Isl Ricardo G. Cedillo
RICARDO G. CEDILLO
State Bar No. 04043600
LES J. STRIEBER III
State Bar No. I 9398000
ISAAC J. HURON
State Bar No. 24032447
and
George H. Spencer, Jr.
State Bar No. I 892 I 00 I
CLEMENS & SPENCER
I I2 E. Pecan Street, Suite 1300
San Antonio, Texas 78205- I 53 I
T: (210) 227-7121
Attorneys for Defendant Church of Scie11tology
I11ternatio11al
44
I
'
CERTIFICATE OF SERVICE
I hereby cettify that a ttue and correct copy of the foregoing has been forwarded by hand
delivery, electronic transmission, and/or facsimile, and/or certified mail, return receipt requested
and/or regular mail to the following counsel ofrecord on this the 18th day of October, 2013:
Ray B. Jeffrey
A. Dannette Mitchell
JEFFREY & MITCHELL, P. C.
2631 Bulverde Road, Suite 105
Bulverde, TX 78163
Elliott S. Cappuccio
PULMAN, CAPPUCCIO PULLEN
& BENSON, LLP
2161 N.W. Militaty Hwy., #400
San Antonio, TX 78213
J. Iris Gibson
HA YNES & BOONE LLP
600 Congress Ave., Suite 1300
Austin, TX 78701
0. Paul Dunagan
SARLES & OUIMET
370 Founders Square
900 Jackson Street
Dallas, TX 75202
Marc F. Wiegand
THE WIEGAND LAW FIRM, P .C.
434 N. Loop 1604 West, Suite 2201
San Antonio, TX 78232
Lamont A. Jefferson
HA YNES & BOONE LLP
112 E. Pecan Street, Suite 1200
San Antonio, TX 78205-1540
Jonathan H. Hull
REAGAN BURRUS
401 Main Plaza, Suite 200
New Braunfels, TX 78130
Bet1 H. Diexler
KENDALL BRILL KLEIGER
10100 Santa Monica Blvd., Suite 1725
Los Angeles, CA 90067
Isl Ricardo G. Cedillo
Ricardo G. Cedillo
Les J. Strieber III
Isaac J. Huron
45
CAUSE NO. C-2013-10828
MONIQUE RATHBUN
Plaintiff,
V.
DAVID MlSCAVIGE, RELIGIOUS
TECHNOLOGY CENTER, CHURCH
OF SCIENTOLOGY INTERNATIONAL,
STEVEN GREGORY SLOAT, AND
MONTY DRAKE
Defendants.













IN THE DISTRICT COURT
207
111
JUDICIAL DISTRICT
COMAL COUNTY, TEXAS
AFFIDAVIT OF ALLAN CARTWRIGHT
BEFORE ME, the undersigned authority, on this day personally appeared Allan
Cartwright, who, after being by me duly sworn, stated on his oath as follows:
I. My name is Allan Cmiwright. I am a resident of Los Angeles, Los Angeles
County, California, am over the age of 18, of sound mind, have not been convicted of a felony,
and am capable of making this affidavit. The facts stated in this affidavit are within my personal
knowledge or are based on my review of records in the possession of Church of Scientology
International, and are tme and correct.
2. I have been a staff member of several churches of Scientology since 1974. Since
l 982, 1 have worked in several different positions on legal matters for churches of Scientology.
In early 2000, 1 assumed the position of Legal Director for Church of Scientology, Flag Service
Organization, which position I held until 2006. From 2006 to the present I have held the position
of Legal Director for Church of Scientology International ("CS!") and have been directly
involved in the legal affairs of CS! in the Office of Special Affairs International. As such, I am
responsible for the supervision of all corporate and legal matters for Church of Scientology
(
International. In my capacity as Legal Director l have personal knowledge of its operations
throughout the United States.
3. r am also a corporate officer of Church of Scientology International. I am the
assistant secretary, a position I have held since 2006.
4. My responsibilities as Legal Director for CSI include working with counsel to
decide upon and implement strategies to respond to suspected misuse and misappropriation of
Church intellectual property rights, litigation threats, pending litigation and attacks on the
Church through the media and internet biogs. Accordingly, I am familiar with the Internet
postings and other public statements by Mark and Monique Rathbun. I have been personally
involved in dealing with their media attacks against the Church, their threatened and possible
infringements of Scientology trademarks and service marks and Mr. Rathbun's active
involvement in pending litigation and other litigation that was anticipated or under consideration.
5. I knew and worked with Mark Rathbun for more than 20 years. For most of that
time period, Rathbun was a staff member of Religious Technology Center ("RTC")
1
until he was
relieved of his official duties in December 2003 for gross misconduct. He subsequently, and
without giving any notice, left staff in 2004. The Church of Scientology did not hear from Mr.
Rathbun for approximately five years until 2009 when, without any communication with or
provocation by the Church, he began a media campaign against the Church and its leadership.
1
RTC was formed lo maintain the purity and ethical use of the philosophy and practice of
Scientology, to own the service marks and trademarks associated with Scientology religious
services, to limit their exclusive use to faithful organizations within the Scientology religion and
to insure that the nature and quality of all services and goods associated w Uw: -seFVis d
trademarks are delivered in accordance with Scientology scripture. By reement dated June
2009, RTC granted to CSI the right to investigate deviations from scripture an poss1 le misuse
of Scientology trademarks and service marks. At the same time, RTC granted CSI the right to
initiate suit or engage in other reasonably appropriate enforcement actions against any third party
reasonably suspected of failing to maintain the purity and ethical use of Scientology or its service
and trademarks. (Exhibit 1, attached}
2
Rathbun became a self-proclaimed "independent Scientologist" proffering to the public his own
version of what he calls "Scientology." As described in the "About the Author" pages of his
book The Scientology Refor111ati01i2, "Rathbun left the Church of Scientology in 2004. He is
now an independent Scientologist. As such he and his wife, Monique, provide counseling and
auditing services for other Scientologists that have cut their ties with the Church of Scientology."
(Exhibit 2 at 111.)
6. CS! discovered that on January 21, 2009 Rathbun anonymously posted an ad on
Craigslist stating the following:
"Scientology co1111seli11g: "thorough(v trained 011 all levels of Scientology spiritual
co1111seli11g. Reasonable rates ... inquire al sthtexle11s111a11@yahoo.com"(Exhibit 3).
7. On February 10, 2009 Rathbun described "auditing"
3
that he had given to others
including a woman who paid him "a modest sum 011 her own origination" (Exhibit 4). Also see
Mark 'Marty' Rathbun's" book, What is Wrong with Scientology?" published on-demand June,
21, 2012, excerpts attached hereto and incorporated herein by reference as Exhibit 5 ("On three
occasions I used simple Scientology techniques to prevent illnesses from taking hold of
Monique's body." "I audited her up the Bridge ... " "After another three years of delivering
Scientology on the same basis to former members of Scientology Inc. and to people new to the
subject altogether .... "]; September 26, 2009 blog re "Independent Scientology Community"
(attached as Exhibit 6) ("! am advocating that independent thinking Scientologists think hard
about being proud of exercising their independence. That they make themselves known and use
the title "Scientologist" without shame or embarrassment."] Rathbun has repeatedly used the
2
The book is available on-demand, produced by CreateSpace Independent Publishing Platform
for Amazon.com, October JO, 2012.
3
Scientology auditing is religious counseling, which provides a precise route which allows
participants to progress to higher states of spiritual awareness.
3
term Scientology and related le1111s in promoting his business. Further, he has taught his wife,
the plaintiff herein, to use those terms, which she has done. Plaintiff has encouraged him to
provide unauthorized Scientology services to others, and has herself engaged in the unauthorized
provision of Scientology auditing to others while not being properly trained to minister such
services. (Exhibit 7, Transcript of Hearing on Motion for Preliminary Injunction at 84:16 85:8,
176:3-7.) To Scientologists, a person who engages in such unauthotized practice of Scientology
is considered a "squirrel," the Scientology te1111 for a heretic. Hence, both of the Rathbuns are
considered "squirrels" by Scientologists in good standing.
8. From 2009 through late 2012, Mark and Monique Rathbun lived at several
different addresses in Ingleside on the Bay. The Rathbuns used these residences as their offices
for the delivery of "Independent Scientology" services. In October 20 l 0, they moved to larger
quarters (which Mr. Rathbun dubbed "Casablanca'') "in order to be betler prepared to deliver"
such services. (Exhibit 8, Rathbun blog.) I have continued to monitor Rathbun's blog to see
what it contains desc1ibing Rathbun's actions in delivering altered versions of Scientology
religious services. At some limes il has appeared that he was going off into other, non-
Scientology practices, but at later times his biogs have indicated a return to the delivery of
"squirrel" Scientology. This has been an ongoing concern to detem1ine the extent of Rathbun's
potential violations ofCSl's intellectual property rights.
9. Commencing in 2009, Mr. Rathbun became extremely active in the media to
attack Scientology and its leadership. He has been so active that Monique has acknowledged
that he is in fact a public figure. (Exhibit 7, September 12, 2013 transcript at 194:4-9).
I 0. A number of the media interviews were given inside the Rathbuns' home/offices.
For exalllple, Rathbun appeared for an on camera interview from his home on ABC's Nightline
which was aired on October 22, 2009. (Exhibit 9, screenshot) Channel 4 in the United Kingdom
4
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did a show featuring the Rathbuns which aired on June 17, 2013, and which showed Monique
inside their house. (Exhibit I 0, screenshot.) The Rathbtms hosted a reporter and video crew from
the German station N-TV, which showed Monique in her living room when it aired on December
11, 2012. (Exhibit 11, screenshot) In early 2012, reporter Guy Adams was invited into their
office/residence and given an interview, and his article ran in the UK Independent on April 7,
2012, with a photograph of Rathbun standing before his Scientology books in their
residence/place of business. (Exhibit 12, photo from atiicle.)
11. Rathbun appeared on a CNN broadcast with Anderson Cooper on March 29,
2010. He voluntarily appeared on BBC, ABC, NBC and other television venues. He made
himself available for interviews with leading newspapers, including the New York Times,
Tampa Bay Times, Texas Monthly and various local newspapers throughout the United States
where he was widely and often quoted disparaging the Church and its leadership.
12. Mark and Monique Rathbun volunteered for travel to Germany and appeared
together at a press conference and on German television Channel l where they made disparaging
statements about the Church, in the company of Ursula Caberta. Caberta is a fotmer employee
of the German Ministry of the Interior for the State of Hamburg who was admonished by the
German courts and the U.S. Department of State for her religious intolerance, lack of neutrality
and bias against the Church of Scientology and its members. (See U.S. Department of State,
International Religious Freedom Report 2003,
http://www.state.gov/j/drl/rls/irg/2003/24410. htm).
13. Rathbun has also produced videos of himself and others and has his own
YouTube channel which currently contains over 70 videos. These include videos with his
associate Mike Rinder, attacking the church and its officials while sitting at Rathbun's residence
and place of business in Texas. Monique is also featured on a number of his biogs including
5
videos he shot of her in their home. (Exhibit 13, blog) He distributed his videos and transcripts of
his interviews over the world-wide Internet.
14. In February 2009, Mr. Rathbun started an Internet blog which frequently
published vitriolic, defamatory and malicious attacks against the Church and its ecclesiastical
leadership. For example on September 26, 2010, Rathbun called Scientologists "kool aid
drinkers." (Exhibit 14) On April 23, 2010, Rathbun blogged that he "told the Times and CNN
.. . in the hopes of preventing what I was concerned might deteriorate into a Jonestown
situation." (Exhibit 15).
15. Rathbun has also used his blog to solicit clients for his "Independent Scientology"
services (Exhibits 6, 8), which is how he earns his living, and to make money from donations.
(September 12, 2013 transcript, Exhibit 7 at 171 :23 - 172:9) His wife Monique is a contributor to
this blog and also monitors its content. (Exhibit 16.) His blog cwrnntly has a link entitled "News
About Monique," which links to an article on this lawsuit quoting extensively from plaintiff's
Original Petition and her counsel Ray Jeffrey.
16. Mr. Rathbun is also the author of three self-published books. In one of these, a
112 page book in 2012 entitled "The Scientology Reformation," he has attempted to establish
himself as a modem day Martin Luther. (Exhibit 2) That book includes "Thirty-One Factors for
Scientologists to Consider" in imitation of Luther's 95 Theses nailed to the door of the
Wittenberg Castle Church. (Id. at 95) He has, on many occasions, accused the Church and its
leadership of departing from ethical Scientology doclline and com1pting the religious practices
and scriptures of the Scientology religion. (Sec Exhibits 6, 8).
17. The Rathbuns' unauthorized counseling practice, as described above, was an
immediate cause for concern by myself and other staff of the Office of Special Affairs who are
charged with the protection of the Scientology religion, all churches of Scientology as well as
6
these intellectual prope11ies and the enforcement of CS I's rights. This was a primary reason for
CSl's decision to have counsel retain an investigator to help detennine the nature and extent of
any possible infringements. But beyond that, Rathbun engaged in other conduct which also
required attention to protect the Church and its members from his acts of harassment.
18. In May 2010, Mr. Rathbun along with another former staff member, came outside
of CSI's facilities in Riverside County, California, and called in on a cell phone. Rathbun
impersonated a Church executive claiming to be calling on behalf of the current President of
Religious Technology Center, a defendant in this case to get to speak to a particular staff
member, and when he got through to her, he attempted to pull her out of the Church; the staff
member angrily rejected his effo11. In 2010, Mr. Rathbun was issued a "Trespass Warning"
citation by the Clearwater, Florida Police Department effectively preventing him from disrupting
Church services at the Church's international spiritual facility which is located in that city.
Rathbun, along with fellow ex-Scientologists Mike Rinder an-ived at the facility attempting to
gain entrance, while a third member of their crew video recorded the staged incident. (Exhibit
17, a true and correct copy of an April 14, 2010 "Trespass Warning to Mark Rathbun issued by
the Clearwater, Florida Police Department).
19. Mr. Rathbun has explicitly encouraged Scientology parishioners and staff
members to leave the Church, to take or steal Church property and Church proprietary and
confidential info1mation with them. On August 26, 2010, Rathbun posted an article on his blog,
which openly encouraged church staff members who decide to leave the Church to steal church
documents and records when they leave. He wrote that if they do so,"! personally guarantee you
protection." (Exhibit 18, blog).
20. A few weeks later, a Scientologist staff member, Daniel Montalvo, appeared to
take Rathbun's advice, by leaving his staff position at the Church's publishing company and
7
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taking with him five computer hard drives full of proptietary and confidential infonnation.
Rathbun was in the car when another ex-Scientologist picked up Montalvo with the stolen goods.
(See December 3, 2010 Declaration of Daniel Montalvo, paragraphs 5-8, 12-14, attached as
Exhibit 19.) Rathbun later put Montalvo's photo on his blog (with Monique Rathbun's image
reflected on the glass door behind him). (Rathbun Blog, Ex. 20.) Montalvo was later arrested for
theft and Rathbun helped arrange his bail and later helped raise funds for a lawyer so Montalvo
could file suit against the Church. (Id. and see Second Montalvo Dec. Exhibit 21).
21. In addition to the Rathbuns' violation of Scientology trademarks, and his acts of
harassment, the third major area of concern was Mark Rathbun's extensive involvement in
litigation against CSI and other Scientology related entities. Mr. Rathbun has been represented in
various legal matters by his wife's lawyer and lead counsel in this lawsuit, Ray Jeffrey. Mr.
Rathbun and another detractor of the Church, Mike Rinder, have directly or indirectly
participated in, consulted, and/or assisted in at least fourteen legal matters related to or against
the Church:
a. DeCrescenzo v. CS! (Los Angeles Superior Court, Case No. BC411018)
b. Haydn James v. Harlingen Family Dentistry (Southern District of Texas, Civil
Action No. 7:1 J-CV-267)
c. Garcia v. CSRT, FSO, et al. (Middle District of Florida, Case No. 8:13-CV-220-
T-27TBM)
d. Garcia v. FSO, FSSO (Pinellas County Circuit Court of the Sixth Judicial Circuit
(Florida), Case No. 11-8503-CI-20)
e. FSO v. Debbie Cook, Wayne Baumgarten (Cause No. 2012-CI-01272, District
Court of Bexar County, 150'h Judicial District Court of Texas)
f. Paul Marrick & Greg Arnold v. CSI (Cause No. S-12-5645CV-C, District Court
of San Patricio County, 343nl Judicial District of Texas)
g. Daniel Montalvo v. CSI (Los Angeles Superior Court, Case No. BC45661 l)
h. Susan Clickner v. Lynch (Pinellas County Circuit Court of the Sixth Judicial
Circuit (Florida), Case No. 11-9678-FD-23)
t. Schippers/Hoverson v. FSO (Pinellas County Circuit Court of the Sixth Judicial
Circuit (Florida), Case No. 11-11250-CI-2 l)
j. Marc Headley v. CSI (Central District of California, Western Division, Case No.
CV 09-3986 DSF)
k. Claire Headley v. CSI, RTC (Central District of California, Western Division,
Case No. CV 09-3987 DSF)
8
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22.
l. John Lindstein v. CSI (Los Angeles Superior Court, Case No. BC426872)
m. Kyle Brennan case (Middle District of Florida, Case No. 8:09-CV-00264-T-23-
SDM-EAJ)
n. Dandar v. Church of Scientology Flag Service Organization (''FSO") (Middle
District of Florida, Case No. 8: 12-cv-2477-T-33EAJ)
As described above, Plaintiff Monique Rathbun has aided and abetted her
husband Marty Rathbun in many of his acts which threaten the Church's rights. In addition,
Plaintiff has independently attacked the Church and its leaders. She has posted defamatory
material, statements, and highly vitriolic messages and comments on Facebook, with links to Mr.
Rathbun's blog. (Exhibit 22) For example, she referred to the "so-called 'church,"' and that it
"hid behind 'religion,"' while calling its leader a "madman." She stated: "enough already, how
much proof do you need before the authorities get off their asses!!!!" She has also used such
"fighting words" in her own postings on that blog (Exhibit 23.) She has appeared on NBC Rock
Center and Channel 4 in the United Kingdom, and has been quoted in articles including in Texas
Monthly. She accompanied her husband to Germany for his meetings, and attended the press
conference in which he and others attacked the Church and its leadership. (Exhibit 7 at 194: 17-
195:24.)
23. In April 2011, a few individual Scientologists expresses their religious opinion
about Marty Rathbun's alteration and misuse of Mr. Hubbard's works and his claim to be
practicing Scientology by traveling to hlgleside on the Bay, Texas where the Rathbuns engaged
in the practice of what they call "independent Scientology." These Scientologists intended to
document the Rathbuns' abuses and to produce documentary videos of such abuses, including
Mr. Rathbun's provision of"squirrel" Scientology from the home he shares with plaintiff which
is also their place of business/residence. The Scientologists called themselves the "Squirrel
Busters." (See Affidavit of John Allender.) CS! supported the Squirrel Busters and provided
9
some financial and legal support of the Squirrel Busters' First Amendment freedom of speech
activities.
24. The Squirrel Busters made at least 14 videos which they posted on their own
YouTube channel. Rathbun had his own YouTube channel, and he countered by putting up over
20 of his own videos relating to the Squirrel Busters. Many of these are still on Rathbun's
channel today. The Squi1Tel Busters distributed pamphlets about Rathbun and his activities, and
Rathbun responded with an Open Letter to the citizens of Ingleside.
25. A review ofRathbun's blog and media that ran in 2011 and into 2012, shows that
during the time the Squirrel Busters were in Ingleside, a number of news reporters visited
Rathbun and his wife at their place of business and elsewhere, where they interviewed and
filmed them. Rathbun pennitted the media to film at his place of business, and the media showed
segments of both the outside and the inside of the premises. These included Frank Nordhausen
from a Gemian TV Channel, Mark Colette from the Corpus Christi Caller Times, John
Maccormack of the San Antonio Express-News, Mike DaSilva from ABC Channel 3, and
Amanda Torres, from the Aransas Pass Progress. There were several stories in the local press
(San Antonio Express-News and Corpus Christi Caller Times), and the readers of the Caller
Times voted the Squirrel Busters ai1icles in that paper as the "Story of the Year."
26. The Village Voice of New York, an alternative newspaper, repeatedly covered
the Squirrel Busters in its blog, posted videos made by both Rathbun and the Squirrel Busters
and published a letter from the Squirrel Busters. In March 2012, CS! responded to questions
about the Squirrel Busters from The !11depe11de11t in the UK, and in July 2012, CS! responded to
questions about them from NBC TV.
27. CSI, through its counsel, retained several licensed professional private
investigators as a result of Marty Rathbun' s actions. As described above, these investigators
10
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were hired because Rathbun was suspect of infringing upon CSI's intellectual property, his
invitations to others to engage in theft of CS! materials and property, his trespass upon church
properties, his use of a ruse to speak to CS! staff members and to importune them to renounce
their religious commitment, his harassment ofScientologists and his involvement in a wide range
of litigation matters as well as his public attacks upon Scientology and its officials, including his
use of highly defamatory allegations. The private investigators' work product was sought in
connection with possible affinnative litigation and in the defense of litigation threatened by
Rathbun or existing litigation in which Rathbun played a part. All of the private investigators
were specifically directed to use proper, ethical and completely legal methods. No private
investigator was directed or authorized to use improper, unethical, unusual or illegal methods,
and none did. Monique Rathbun acknowledged in her testimony at the preliminary i1tjunction
hearing that she has no evidence that the private investigators entered the Rathbuns' place of
business/residence, peered into it, photographed inside of it, used any fotm of electronic
surveillance with respect to it, interfered with or wiretapped the Rathbuns' telephone service,
physically blocked or interfered with the Rathbuns' freedom of movement, or physically touched
or threatened the Rathbuns. (Exhibit 7, atl78:19 182:8, 200:3-7.)
28. I have read the allegations in the affidavit of Monique Rathbun that she received a
package containing "sex toys" at her place of work sent by the defendants and that defendants
sent flowers to a female co-worker with a "romantic" message purporting to be from her. Ms.
Rathbun admitted that there was no return address on the box which contained the sex toys.
(Exhibit 7 at 207:12-20.) Furthennore, I can state that if these acts were done, they were not
performed, directed or authorized by CSI.
11
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29. I swear under penalty of pe1jury under the laws of the State of Texas and
California that the foregoing is true and correct, and that this Affidavit was executed by me on
the 17th day of October, 2013 at Los Angeles, California.
AL/10;J---
SUBSCRIBED AND SWORN TO BEFORE ME on this 17h day of October, 2013, to
certify which witness my hand and seal of office.
ELIZABETH Del.EON
e
11ot1rvPubllc
$tateofTell3S
My Comm.)!>. 06-10-2017
~ ~ " - - -
NOT ARY PUBLIC IN AND FOR
THE STATE OF TEXAS
Elizabeth DeLeon
My Commission Expires: 6/1012017
12
EXHIBIT 1
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ADDENDUM TO LICENSE AGREEMENT - CSI
Religious Technology Center ("RTC") and Church of Scientology lntcrnational ("CS!")
hereby enter into this Addendum to the License Agreement- CSJ, dated May 18, 1982
("License").
RECITALS
A. The first sentence of paragraph 5 of the License provides that:
RTC and CSI shall cooperate in the enforcement of rights under the
Marks, against any unauthorized or improper use, and shall join as co-
plaintiffs in any legal action that may be taken.
B. RTC and CS! agree that CSJ, in accord with its function within the hierarchy of the
Scientology religion, should be individually responsible for enforcement of the trademarks in its
own name.
NOW, THEREFORE, RTC and CS! agree:
I. The first sentence of paragraph 5 of the License is hereby amended as follows:
CS! shall enforce the rights under the Marks as defined in the License or
any addendum thereto against any unauthorized or improper use, and
shall have the right to initiate suit or to engage in other enforcement
procedures against any third pa1ty.
2. Other than this Addendmn to the first sentence of paragraph 13, the License as written
shall remain in full force and effect.
'd-CL>i
Relisious Technology

By its President
Church of Scientology International
(
EXHIBIT 2
(
The Scientology
Reformation:
What Every Scientologist
Should Know
Mark 'Marty' Rathbun

concluded tlut the best way to refonn Scientology is
to do as Ron said, and break the oppressive monopoly
by going right a.head and applying SdentoloID in the
manner they sec fit.
Some have misunderstood the Protestant
Reformation in attempting to draw analogies to
present-day Scientology. They consider that
"reformation" was used to refer to instituting reforms
in the established Christian church of those
times. In fact, "reformation" referred to the reforming
of the religion of Christianity, rather than ro re-
organization of the Catholic Church. Attempts by
Luther and others to end Catholic Church oppression
in the 1500s resulted only in retribution and
punishment from the church's Inquisition. ::-Jot
that is precisely how Scientology Inc.
reacts to any attempts to put ethics in on the
organization. People are exco=unicated and labeled
as suppressive persons. If they continue to practice
Scientology, no matter how much more standardly
than Scientology's Inc's revim.Scientology perversions
of the original technology, they are labeled "squir.rels,"
the mod=-day Scientology equivalent of heretics.
Christianity was refonned by making its scriptures
available to any individual, to study and to practice in
the way his or her own conscience and understi.nding
saw fit. That reformation began -..vith the recognition
that no man or institution held a monopoly on the
Bible and its teachings - least of all an institution that
was just as conupt, if not more so, as the civil.. political
and gov=mental bodies of the times. People had to
be freed to follow the path of Christianity without the
interpretation and conrrol of a vested, morally
94
,,,,.--..,
bankrupt interest. Ultimately, thousands of churches
were created to facilitate rhat purpose. Like-minded
people created hundreds of different denominations.
Thus, Christianity was refonned and saved from the
degradation a demented monopoly had inflicted upon
it. Ultimately, that refonnation caused the religion to
flourish and serve as the backbone for the evolution of
western civilization.
Luther's first, crust-busting blow 'vas delivered by
tacking 95 enumerated, institutionalized abuses of the
church to the door of his local church, so that they
could be read and freely discussed. When this simple
act resulted in Luther being branded as a heretic and
targeted by the Inquisition, he refused to recant and
made it his life's work to make Christianity available to
all, outside of the jealous monopoly which had nearly
destroyed it as a faith.
Borrowing a page from Marcin Luther's
refonnation pbybook, on July 1, 2009 I published the
following Thirry-on( Fartors For Scimtolllgists to Co!Uider
on my blog /\/loving On Up A Little (at
markratbb11n.wordprus.com). Steve Hall (operator of the
popular site sciemology-cult.com) and Mike Rinder
(former intenutional spokesperson for the church of
Scientolo&>y) prorided advice an<l editing :issistancc:.
These 31 factors affecting Scicntologisrs serve as an
anchor in defining che purpose of an<l the reason for
wbat bas become known :is the Independent
Scientology movement.
Thirty-One Factors for Scicntologisrs to Consider
Scientology Founder L Ron Hubbard discovered
95

,r--..
all that is issued and demanded by Scientology lnc., no
matter how far those demands s=y from and conflict
with the philosophy of Scientology as promulgated by
L. Ron Hubbard.
If you want to lcam more about responsible
alternatives to supporting a morally corrupt. dying
organization that is serving to destroy L. Ron
Hubbard's Scientology philosophy, I reco=end you
visit the following sites and study deeply of them:
My blog: Moti11g Or. Up a Link Higher at
mukrathbun.wordpress.com
Iscientology.org, the voice of the Independent
Scientology movement
Steve Hall's Independent resources central;
free&able.com
Steve Hall's news forum and azchivc: Scientology-
cult.com
Namastc.
!10
,,,..--....
_>\BOUT THE AUTHOR
Marie 'Marty' Rathbun was Inspector Gencral of
the Religious Technology Center (RTC), the
organization that controls the copyrights and
tr.ldemarks of the materials rel2.ting
to Dianecics and Scientology. His role was to head the
Inspector General Network, described by the Church
of Scientology as ''an independent investigatory and
policing body whose function is to keep Scientology
working by ensuring the pure and ethical use of
Dianetics and Scientology technology." The post is
one of the most senior nunagement functions in the
Church and its rcbted organizations.
Ra.thbun left the Church of Scientology in 2004.
He is now an independent Scicntologist. As such he
and his wife, Monique, provide counseling and
:iuditing services for other Scientologists that have cut
their ties with the Church of Scicntologr. He emerged
as a critical source in a 2009 St. Times eJ>..-pose
on the organization, revealing that physical violence is
a co=on occurrence within Scientology
management, and that Scientology head David
Miscavige regularly beats his staff, and orders staff to
administer beatings to designated individuals. The
series by tl:..; Twm titled "Inside Scientology: The
111

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EXHIBIT 3
sthtexlensman - Google Search http://www.google.comlsearch?hl=en&q=sthtexlensman&btnG=Search
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EXHIBIT 4
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Thank you to the l'lelcomers, defenders, critics, and attackers. I apologize for not having read your rules. I still haven't, but I
take your word for it that putting my name out there and letting people know they can come to me for help Is a violation. You
can go ahead and cancel my membership if you want because I admit that was my only intention. I am not into internet chatting
and posting. It is not the forum for me to say what I have to say. Context and timing is everything; and this Is not It. As far as
those who says I hurt them some how, you know how to get hold of me. I made good with a number of people with l'lhom I've
met si nce I left, on a one on one basis. As to demands that I disavow everything about Scientology, It Is not going to happen. I'll
give you three examples why not. First person I dealt with since leaving the Church never had any contact with Sen, was
chronically Ill, at least four major episodes per year - for decades. With a little education on the mechanics of suppression (no
evaluations of who the SP is, no demands to disconnect) the person has not been ill once in the three years since. Second fellow
(also no Sen contact) grew up being subjected to frighteningly Inhumane treatment throughout his childhood. Had thirty years of
psychotherapy at untold cost - the result was he was fi xat ed on the dark era daily, constantly figuring on how he was inheritly
responsible and permanently degraded since. Two months of weekend auditing, and the guy says he has no fixation on the era,
has no self-Invalidation going on, and we totally handl ed what thirty years of psychotherapy made worse. Neither of them paid
for my services, though exchanged in life how they saw flt. Third person spent literally hundreds of thousands over 10 years in c
of S trying to get something straightened out. We were able to sort it out, to much relief and continuing well being of the
Indivi dual, in less than a week - and she pai d me a modest sum on her own ori gination that was well within her means. Call me
what you will, or even try to get in the road of that, It has zero effect on me. I don't care if you are a kid posting with a
pseudonym or the chairman of some gigantic corporati on, or the head of the FBI for that matter. In that regard, one post er
demanded I confess to the FBI. Well, his J.Edgar heroes had me under intense surveillance, ran informants in on me, and tapped
my phone over an extended period of time - all while I was In. When I got the two feet of transcri pts of my phone calls through
FOIA, the agent who ran the operation told me,"we did our best, but you just wouldn't take the bait." So, a) they are the last
people who are entitled to any confession by me, and b) I know for a fact they don't have the balls to ask for one. And that goes
to the very top, to the punk (and I use the word advisedly from personal experience) who spent a year travelling around the
globe trying to put me behind iron bars. As to variety of sources, I'll give you a couple examples. One, The Shack by Wm Paul
Young. It' ll gi ve you an idea how a Church can stand one-hundred and eighty degrees diametrically opposed to Its own most
fundamental tenets - and yet the tenets can still be workable. Two, John Steinbeck, East of Eden, It'll teach anyone the power of
unconditional love and forgiveness. Speaking of Steinbeck, here's another valid therapy: he once said that an afternoon of
fishing does a person more good than three months of psychotherapy. Here's one that a field auditor from Tampa just sent me
(go to YouTube and search " validation" and watch the 16 minute movie by that title, then go sincerely validate somebody and
see If you don't feel more cheerful yourself). I'm learning all the time - like BB King said, a day when I don't learn something
new Is a wasted day. I've seen that a world of good can be done for someone by helping them to differentiate between workable
techniques, unworkable techniques, oppressive organizations and suppressive indi viduals. One of Sen's greatest problems is its
Instilling of the " us vs. them" attitude In members. Having studied deeply of the causes of Its conflicts from the outset I can see
how the old man fell into that trap. I am not arguing It was justifi ed or not. Unfortunately, It ls largely responsible for the
unproductive, divisive and, for some, traumatic current scene in the margins between Sen and former members. From my short
encounter on this site, It appears some folks are still dramatizing what they consider is the winning valence. Example given,
people Instructing me what to say and to whom to say It and when sort of suggests a cyber SP Hall. I don't see eye to eye with
Hubbard's view that dialectic materi alism i s a fallacy. I've witnessed it on the inside and out - the only time anything productive
seems to ever gets done is after thesi s collides with antithesis resulting in a synthesi s. I'm done with being unthinking thesis or
antithesi s. I am into synthesis. I 'm into healing. People who agree know how to contact me. Thanks again for permitting my
apparent misuse of your board, and for spreading the word, my email's been overflowing. And, sincerely, best wishes. Mark
' Aom