When Talk Isn't Cheap and Speech Isn't Free: The Abuse of Libel Law

SCP Newsletter, Volume 11, Number 4
November, 1986

At Issue

     This issue of the SCP Newsletter is the first we have published this year. Some of the reasons for that delay are suggested by the articles you are about to read - SCP has endured a financial crisis which followed in the wake of a four-year libel lawsuit brought against us by Witness Lee and the "Local Church." This newsletter contains the story of that litigation.

     But not the whole story. Those who are familiar with the issues in libel lawsuits will recognize that huge chunks of information are missing. For example, there is no discussion of the evidence that SCP had assembled to support our defense. Some of the witnesses who were prepared to testify on behalf of SCP are listed (appendix one, p. 9), but the actual content of their testimonies is never described.

     The reason for that omission is simple. Our attorneys recommended we not mention any facts which could be construed as support for the accuracy of our book's assessment of Lee and the Local Church. They feared that in so doing we would be implicitly repeating our original statement, thus providing the basis for a new lawsuit.

     Such anxious reluctance to raise certain issues is called the "chilling effect on freedom of speech." This colorful phrase has become a judicial cliche, but its real meaning is not often understood. If you've ever wondered what the "chilling effect on freedom of speech" looks like in practical terms, you are holding a classic example in your hands.

- Brooks Alexander

When Talk Isn't Cheap and Speech Isn't Free: The Abuse of Libel Law
by Brooks Alexander

     The law is not a neutral tool to be used to any end. It has an intended function, and that function can be misused. Several religious groups have used judicial process to suppress religious opposition and criticism that they themselves have created. That is not a purpose the law was designed to promote.

     But it is a purpose that has prevailed. Why? What makes such results possible? What weaknesses in our legal system render it vulnerable to such abuse?

     The law of libel in particular is open to manipulation because it suffers from a case of rapid change. Recent court decisions are turning out to have some practical implications that were unforeseen.

     It has always been hard to draw a proper line between freedom of the press and protection of personal privacy. In today's complex society, it is predictably harder than ever. U. S. law, starting with the Constitution, has tended to favor "free and open discussion of public issues and the performance of public officials, so that an informed people can govern themselves. To further that goal, the First Amendment guarantee of freedom was written on behalf of a press that was far more noisy, brawling and partisan than the much maligned journalism of today" (Henry, 1985, p. 93).

Sullivan: Protecting the Right to Criticize
The issue in libel suits is always criticism, and the courts have generally protected the right of the individual to speak out in critiquing the powerful and opposing abuses of power. Of course there is more than one way to silence criticism. One is to prevent it from appealing, another is to punish it when it does. Because libel lawsuits can be used as a tool of power to intimidate vocal opponents, the courts have tried to protect the right of criticism by making libel suits difficult or impossible for certain types of plaintiffs.

     It has long been established, for example, that the goverment (sic) cannot sue for libel. Its power, resources and interests in dampening opposition are too great to allow it that tool. But there remains the question of the government official who claims personal injury from being criticized as an official. That was the issue in the foundational case for modern libel law, New York Times v. Sullivan (1964).

     The Sullivan case arose from the 1960s struggle for black civil rights in the South. The New York Times printed a political advertisement which was critical of Alabama law enforcement. The ad included some errors of fact and mentioned the plaintiffs by function, though not by name. The plaintiffs sued.

     The Supreme Court unanimously rejected the plaintiffs claim. The Court explicitly stated that the point of its decision was to protect freedom of speech by protecting those who engage in public controversy. Said Justice Brennan: "A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions - and to do so on pain of libel judgments virtually unlimited in amount - leads to a comparable 'self- censorship.'"

     The judges chose an interesting way to protect publishers from vindictive lawsuits - they required an extremely high standard of proof from the plaintiffs. In order to claim libel, public officials would now have to prove that the defendants published the story despite having substantial doubts beforehand that it was true. Later, this same requirement was applied to the broader category of "public figures," those who voluntarily make themselves newsworthy through their involvement in issues of public concern. The "public figure" rule is simply an extension of common sense: you can't become a public partisan without submitting to partisan rhetoric.

Lando: Meeting the Standard of Proof
It was originally believed that the high standard of proof required by the Sullivan ruling conveyed viral immunity to those who comment responsibly on matters of public interest, and that was apparently the intent of the Court. However, later cases extended the implications of that high standard of proof in ways which had exactly the opposite result. In 1979, the Supreme Court ruled in Herbert v. Lando that libel plaintiffs are entitled to explore the process of writing the story they are suing on.

     Sullivan defined the central factual issue as whether the defendant had doubts about the truth of the story or willfully ignored good reasons to doubt. The answer to that question depends on what the defendant knew and what his attitudes were about it. Lando ruled that plaintiffs have a right to seek out that information. Thus libel plaintiffs were armed with the power of subpoena to rummage through the entire process of researching, discussing, writing, and editing the challenged material - all to the end of interpreting the defendant's condition of knowledge and state of mind.

     Whatever its intentions, this ruling ensured that libel suits would grow longer and more expensive. The rules for conducting a lawsuit, called "procedural law," provide for "discovery": prior to trial, each side is entitled to explore the evidence held by the other. This is done by a means of trial-like proceedings. Sworn testimony is taken of witnesses. Documents, drafts, notes, and correspondence are produced and marked as "exhibits." Written questions are answered in writing, often in exhaustive detail. However, the range of interrogation is much broader in "discovery" than it is at an actual trial. The rule at trial is that a question is allowable if the answer is admissible. The rule in discovery is that a question is allowable if the answer may lead to something admissible.

Discovery: The Never Ending Story
Discovery's broad scope of inquiry combines with the additional range of questions that the Lando ruling opens to the libel plaintiff. The result is a virtually endless array of subjects for inquest and detailed dissection. Plaintiffs can look into anything that is arguably related to an arguably admissible fact. Since the central "fact" of the plaintiff's case is the defendant's "state of mind," discovery in libel cases can become a limitless pillaging of witnesses' subjectivity. The process can be continued for virtually as long as there is money to pursue it.

     In the hands of a wealthy plaintiff, then, the discovery process can be a financial bludgeon, creating enormous legal expenses by forcing the defendant to respond to a protracted series of pretrial maneuvers. If the libel defendant, author or publisher, is protected by legal insurance, the insurance company can often be maneuvered into a submissive settlement by the pressure of runaway costs. If the defendant is not protected, the pressures may amount to a choice between surrender or extinction.

     Thus, an unintended by-product of legal changes has proved to be a main product and now controls the conduct of libel litigation. The high standard of proof required of libel plaintiffs by Sullivan was matched by the broad range of inquiry permitted by Lando. When this combines with the wide scope of discovery proceedings, it makes possible a monetary war of attrition that can be carried on until the poorer party is forced out of business or into submission. In that context, the accuracy of the challenged report becomes largely irrelevant.

     Journalists must now face the fact that the basic issues of truth, accuracy, fairness, and justice have largely disappeared from libel litigation. The chief remaining issue is whether the defendants have enough money to survive the plaintiff's pretrial maneuvers. Financial considerations now dominate the conduct of libel lawsuits in this country and increasingly dominate the conduct and content of journalism.

     It comes down to this: anyone who states an opinion that offends the wealthy and powerful risks having to pay half a million dollars to justify their right to do so. Those who want their voices to make a difference should realize that the risk rises precisely in relation to their effectiveness. The Sullivan ruling, intended as a shield of protection for free speech, has instead given its enemies a weapon of intimidation. The Supreme Court's vision of a vigorous, resolute press has become a nightmare of caution and vulnerability.

Reference

Henry, W.A. (1985, March 4). Libel law: Good intentions gone awry. Time, pp. 93-94.

THE LAWSUIT IN PERSPECTIVE
by Bill Squires

     SCP was formed in Berkeley in the early 1970s for the purpose of bringing a Christian perspective to the various new religious movements springing up in the United States, particularly those movements that were troubling evangelical Christians. Among those which came to our attention in the early years of SCP was a group of people following the teachings of a Chinese man, Witness Lee, and calling themselves simply "the church." The group had become known to observers as "The Local Church."

Rising Concern
SCP was receiving phone calls and letters with questions about this group. We also had contact with the Chinese Christian community on the West Coast and knew of the Local Church's developing history of controversy in Asia. In addition, some of us had observed their activities firsthand here in the U. S. and were aware of some of the controversy surrounding the group in this country (See appendix two).

     For all of those reasons, the SCP staff decided to study the group and publish a report for the benefit of the church-at- large. In 1975 a report on the Local Church was published in the SCP Newsletter. That article was also the basis for a flyer that SCP distributed.

The God-Men
In 1977 SCP published an eighty-page booklet on the Local Church entitled The God-Men, which was later translated into Chinese and published by the China Evangelical Seminary Press in Taiwan. The title of the book was taken from a statement made by Witness Lee:

Do you know what it means to be a real Christian? To be a Christian simply means to he mingled with God, to be a God-man.

     Some months later, SCP researcher Neil T. Duddy prepared a revised and expanded version of that booklet. Duddy's manuscript critiqued Lee's theology and examined the Local Church's practices, its recruitment techniques, and its influence on members of the group. That manuscript was translated into German and published in 1979 by Schwengeler-Verlag, an evangelical publishing house in Switzerland. The title of the German book was Die Sonderlehre des Witness Lee und Seiner Ortsgemeinde [The Unusual (or strange) Teaching of Witness Lee and his Place-Church (or Location Church)].

     An English version derived from the same manuscript was published in the U. S. in 1981 by InterVarsity Press. That book was also called The God-Men. In 1979 the Local Church congregation in Stuttgart, West Germany, filed a lawsuit in Switzerland against Schwengeler-Verlag, alleging the German book was defamatory. That suit was dismissed by the court on the grounds that the plaintiff was an improper party. An appeal by the Local Church in Stuttgart failed.

     In December, 1980, another lawsuit was filed in Oakland, California, also alleging defamation in the German edition. No lawsuit was ever filed against the (sic) The God-Men, the English version published by InterVarsity Press.

The Plaintiffs and their Complaints
Named as defendants were the author, the Swiss publisher, and SCP. The three plaintiffs, Witness Lee, church elder William Freeman, and The Church in Anaheim, alleged in their complaint that the book was defamatory for depicting Witness Lee as:

1. One who rules the local churches throughout the world with an "iron rule."
2. One who manipulates the minds of all of the members of the local churches to the extent that they are under his subjugation.
3. One who precludes the members from reading newspapers, watching television, and having normal relations with friends and relatives.
4. One who threatens dire consequences to any member who challenges him or attempts to leave any local church.
5. One who is teaching false principles to the members of the local churches.
6. One who has misrepresented the purpose for collecting funds from members of the church and has misused said funds. By reason of the statements made in said book, together with the juxtaposition of comments at the end of said book regarding Jim Jones of the Peoples Temple and the mass suicides, an implication is also created that the conduct of the plaintiff WITNESS LEE is similar to that of the said Jim Jones ("Complaint for Damages for Libel and Placing Plaintiffs in False Light," filed 8 Dec. 1980 in Alameda County Superior Court, No.540585-9, pp. 4, 5).

     The Church in Anaheim was defamed, they alleged, for the following reasons:

     The said book has stated that The Church in Anaheim is the "Mother Church" of all the local churches and further that as relates to THE CHURCH IN ANAHEIM:

1. The history of the local church is especially characterized by violent encounters with Christian communities.
2. The local church has abducted members from an existing group.
3. The church has not been honest in its representations about itself to others.
4. It engages in skilled, unprincipled and unethical proselytizing of converts to its church.
5. It uses techniques on the members of the church that will lead to the surrender by the member of his individuality and personality with the ultimate aim of isolating the member from his relatives and friends and society in general so that he is under the church's complete subjugation.
6. The conduct of the church was such that a number of members had to seek psychiatric help.
7. The church harassed former members.
8. The church is responsible for deceiving a person by the name of Cia and causing her to lose her foster family, her old friends, her old faith and causing her to give up her former activities ("Complaint for Damages," pp. 7, 8).

     Elder William Freeman was defamed, the complaint said, because the book attempted to create the image that he misled or concealed material facts when applying for seminary.

     The complaint also stated that the book "placed plaintiffs in a false light before all readers of the book by creating the impression that the plaintiffs are engaging in a deceitful, mind-manipulating course of conduct for the purpose of gaining power and control over large numbers of members similar to that of Jim Jones of the Peoples Temple" (p. 11).

     The court was asked to grant the plaintiffs general, special, and punitive damages and the cost of the suit.

SCP's Response
Representing SCP was Michael J. Woodruff, attorney with Griffith and Thornburgh of Santa Barbara, California. Woodruff, an active member of the Christian Legal Society, had been SCP's attorney since 1974 and played an active role in SCP's legal challenge to TM in the public school [See Malnak v. Yogi, 440 F. Supp. 1284 (1977) and appeals court opinion: 592 F. 2nd 197 (1979)]. Today, Michael Woodruff serves the Christian Legal Society as Director of the Center for Law and Religious Freedom in Washington, D.C. Assisting Woodruff in the case were attorneys Stephen H. Slabach and James A. Barringer.

     SCP responded to the complaint by advancing sixteen "affirmative defenses." If we had been able to establish any of them in court, the plaintiffs' claim would have been disqualified. Among SCP's affirmative defenses were the following:

1. The alleged defamatory language was based on facts substantially true;
2. SCP in any case had a good faith belief in the substantial truth of the book;
3. The alleged defamatory language is constitutionally protected opinion;
4. The statements in the book are plainly within the realm of "fair comment" on matters of public interest and concern, and are therefore constitutionally protected as well.

     Neither SCP nor any other party has admitted liability for the book. We believe the book would have been successfully defended in court and that a jury would have rejected the plaintiffs' claims if all of the evidence had been seen and heard.

Strategies of Litigation
But SCP never had a chance to present that evidence, and no court ever tested the plaintiffs' claim at trial. The reason? SCP simply could not continue to meet the extraordinary monetary demands that the lawsuit imposed. We were forced to drop out of the case for financial reasons before the trial could take place.

     For 4 1/2 years, SCP was subjected by the plaintiffs to a strategy of financial attrition by means of pretrial maneuvering. The plaintiffs took depositions in tedious detail. Both author Neil Duddy and SCP's Brooks Alexander were in deposition for thirteen days.

     The plaintiffs' approach produced two things: massive transcripts of their lawyer examining SCP witnesses and massive legal expenses for SCP. The depositions in this lawsuit generated 32,000 pages of recorded testimony and 3,000 exhibits, compiled in two foreign countries and five states: Denmark, Canada, California, Mississippi, Massachusetts, Illinois and New York.

     Michael Woodruff, SCP's lawyer, filed a declaration in federal court in which he stated:

     I concluded that the process of protracted discovery at a tremendous expense was more important to the plaintiffs than meaningful settlement negotiations as they had nothing to lose by the expenditure of vast sums of money. I was personally informed in February 1985 by a person who had recently left the local church that the litigation was costing the plaintiffs approximately $80,000 per month. Obviously, SCP could not afford to sustain a defense indefinitely in the absence of insurance given the magnitude of the discovery efforts by plaintiffs: approximately 140 days or half-days of some 44 persons; only 8 persons were deposed by SCP for 17 days or half-days. I have never seen discovery conducted in such minute detail as that conducted by plaintiffs in this case.

     At the end of our third year of legal defense, SCP had spent $98,000 and owed another $46,000 to our attorneys. A year and a half later, we had spent $260,000 and faced unpaid bills of $84,000. We had been forced to spend an estimated 12,000 man-hours on the case, the equivalent of three people working full time for twenty-five months.

Prelude to Extinction
SCP's debts and expenditures mounted as the time of trial approached. The trial, set to begin on March 4, 1985, was expected to last up to sixty court days, a three-month period. Because the evidence in this case is so complex, the testimony that establishes it is far-flung and expensive to assemble. The trial alone was expected to cost SCP up to $200,000, including legal fees, witness fees, travel expenses, court transcript fees, and additional administrative costs.

     Beyond that lay the real possibility that the Local Church would appeal a defeat, thus setting off a new round of legal maneuver and expense. Even in the short range, the lawsuit was making financial demands which simply could not be met. SCP's existence was threatened.

     At this point we were required to attend a mandatory settlement conference with the Local Church. We spent an entire day, surrounded by attorneys, negotiating with Witness Lee and Local Church leaders to see if a mutually agreeable settlement could be reached.

     During the conference, the Local Church handed SCP a strongly worded statement that they wanted us to sign as a condition to end the suit against us. In effect they were asking SCP to give them an unqualified endorsement.

Crisis and Decision
We knew that the plaintiffs' demand was unacceptable. We knew we could not sign their statement.

     We also knew that our convictions might be costly, and that standing by them might mean the end of SCP. But expressing our convictions is central to SCP's existence and an integral part of our calling.

     SCP was a few days from the start of a long, expensive trial, and we had to make a decision. With $84,000 in legal bills and no money to pay them, we were clearly insolvent. The lawfirm representing us withdrew from the case. We were unable to settle with our opponents. Without money or an attorney, we were unable to proceed to trial. What other options were available?

     After much prayer and wise counsel from others, SCP decided to seek protection under Chapter Eleven of the Federal Bankruptcy Act. A Chapter Eleven bankruptcy is called a "reorganizational" bankruptcy because its purpose is to permit a business experiencing financial difficulty to reorganize its financial affairs without interrupting its operations.

     On March 4, the day the trial was to begin, SCP filed a Chapter Eleven petition in the U. S. Bankruptcy Court in Oakland, California. That move imposed an immediate stay on the plaintiffs' action against us, thus ending the financial drain of litigation. On that day, SCP, while continuing its larger ministry, officially dropped out of the lawsuit. Four and a half long years of libel litigation had ended for us.

     In this way, SCP preserved its existence without making the unconscionable concessions and endorsements that the Local Church demanded. That option was not available to us in the state court. Without bankruptcy protection, SCP had two choices: give in or go under.

A Shift in Defendants
The plaintiffs responded by asking the bankruptcy judge to send SCP back to the state court for a full-scale trial. The bankruptcy judge refused. Finding SCP inaccessible, Witness Lee and the Local Church continued to move against the remaining defendants.

     The first defendant was the Swiss publisher, Schwengeler-Verlag, which had refused to appear at any point in the suit. They had already spent time and money successfully defending a lawsuit over the same book in Europe. Since they were outside the jurisdiction of U.S. Courts, and any award against them would be unenforcible (sic) , they decided from the beginning not to get involved in the U. S. litigation.

     The other defendant was the author, Neil T. Duddy, who was now living and working in Denmark. Throughout the lawsuit Duddy had actively participated in his own defense, frequently using his own personal finances. But with SCP in bankruptcy, Duddy was one man, alone, unable to afford a lawyer, facing a complex three-month libel trial on another continent against an experienced, well-financed legal team led by a skilled libel attorney. Effective legal defense was unfeasible. Duddy therefore elected not to travel to the U. S. and appear in court.

     With no defense present there could be no trial. So Witness Lee and the Local Church called for a default hearing, a one-sided procedure in which the plaintiffs are allowed to make an uncontested presentation to the court.

The Default Hearing
The plaintiffs presented their side of the case to Judge Pro Tem. Leon Seyranian in Alameda County Superior Court, beginning on May 20, 1985.* SCP staff were present as spectators and observed the five-day hearing, but were not permitted to participate because of our bankruptcy status. Witnesses for the Local Church were free to speak their mind in court without concern for objection or cross-examination.

     Acting on the information presented to him by the Local Church and their witnesses, Judge Seyranian issued a strongly-worded, thirty two-page opinion in favor of the plaintiffs which essentially repeated the plaintiffs' complaints about SCP and their claims about themselves. The judge also presented the plaintiffs with an $11.9 million award for general and punitive damages against the author and publisher. Since SCP was in bankruptcy and therefore out of the lawsuit, the judgment did not apply to us.

The $15 Million Claim
But Witness Lee and the Local Church still pressed their charge against SCP. The plaintiffs filed a $15 million claim against SCP in bankruptcy court, thereby assuming the status of creditor on the basis of a disputed damage claim which had never been tested at trial.

     On September 26, 1985, SCP discharged all the monetary claims which had been filed against us by our creditors. In response to their $15 million claim, the Local Church received $34,000, an amount equal to the value of SCP's assets if we had liquidated. The cost of resolving the plaintiffs' claim through the bankruptcy process was the cost of about eight days of trial in the state court.

Where Things Now Stand
SCP has not admitted any liability for Die Sonderlehre des Witness Lee und Seiner Ortsgermeinde or for The God-Men. There has been no meaningful trial of this matter. How can a court decide who is right when only one side is presented?

     The only thing that can be concluded from 4 1/2 years of pretrial manuevering (sic) is that there were insufficient funds to litigate a complex case at the level of legal activity and expense that was set by the plaintiffs. Had there been a trial, we believe we would have prevailed.

     SCP's payment of the plaintiffs' claim through the bankruptcy process does not establish or imply the validity of their claim. Their lawsuit against SCP was simply cut off and terminated. It has not been weighed, tested, or tried by any court. The $15 million claim alone was brought to the bankruptcy court, and it was processed as an ordinary creditor's claim, under the rules of bankruptcy law, without regard for the merits of the claim.

Some Final Thoughts
We urge concerned Christians to carefully and prayerfully review the abundant supply of internationally published material which evaluates and comments on the teachings and practices of Witness Lee and the Local Church, including the tapes and publications of the Local Church itself, in order to accurately understand this group and form your own opinion.

     We are grateful to the many hundreds of faithful SCP friends and supporters whose regular prayers, gifts, and encouraging letters have made our existence over the past five years possible. We are thankful for the volunteers and other workers who gave so generously of their time to help us with our defense. And we are grateful to our attorneys Michael J. Woodruff, Stephen H. Slabach, James A. Barringer, and Ian Macdonald and their staffs for a job well done.

     Today the SCP ministry is functioning normally. We are grateful to God for his faithfulness and care for us during the past five years of this litigation.

*  A Pro Tem. judge is a temporarily appointed judge. Leon Seyranian is an attorney who was temporarily appointed to preside over the default hearing. As an attorney, his area of expertise is real estate law, wills, and trusts.

APPENDIX ONE

Persons Prepared to Testify for SCP
· Dr. Margaret T. Singer, Professor of Psychology, University of California, Berkeley; Professor of Psychiatry, University of California, San Francisco; Chairperson of the American Psychological Association Task Force on the Indirect and Deceptive Uses of Psychological Techniques. Dr. Singer had interviewed former Local Church members and was prepared to give her opinion about the group (Qualified as an expert witness).
· Robert Smith, formerly a Local Church member for fourteen years and an elder for ten of those years, a man who knew Witness Lee personally.
· Joel Painter, Ph.D., former Local Church member; currently Chief Psychologist, Veterans Administration Outpatient Clinic in Santa Barbara, California (Qualified as an expert witness).
· Paul Szto, M. Theo., M. Div., Ph.D. candidate, pastor of the Queen's Reformed Church in Jamaica, New York. Rev. Szto was prepared to offer his expert opinion on the subject of Witness Lee's theology, his presentation of ethics and his spiritual practices. As a member of the Chinese Christian community, he was also prepared to comment on Witness Lee's reputation (Qualified as an expert witness).
· Samuel Tang, Ph.D., Professor of Old Testament, Golden Gate Baptist Theological Seminary, Mill Valley, California. Dr. Tang was prepared to give a general characterization of the Local Church in relation to the teachings of Watchman Nee (Qualified as an expert witness).
· Richard Ofshe, Ph. D., Professor of Sociology, University of California, Berkeley. Dr. Ofshe, recipient of the Pulitzer Prize for his research of the Synanon organization, has studied new religious movements in the United States including the Local Church (Qualified as an expert witness).
· Lorraine Smith, B. A., L. L. B., M. Jur., Auckland, New Zealand. Attorney Smith was prepared to comment on a client who had been a member of the Local Church in New Zealand.
· Allen Swanson, M. Div., M. T., Fuller Theological Seminary, Lutheran missionary serving in Taiwan. Rev. Swanson was prepared to comment on his research and writings about church growth and the Local Church movement in Taiwan and about Witness Lee (Qualified as an expert witness).
· Yuming Chang, Dr. A Christian medical doctor from mainland China who was prepared to testify about the practices of the Local Church and of Witness Lee's reputation in China today.

APPENDIX TWO

Local Church Controversy in the U.S.
     Some of the individuals and organizations that have found themselves engaged in controversy with the Local Church in the U.S. are:
· Christian Literature Crusade, Fort Washington, PA
· Dr. Walter Martin, Christian Research Institute, San Juan Capistrano, CA
· Lighthouse Christian Bookstore, Long Beach, CA
· Dr. Ronald Enroth, Sociologist, Christian author
· Christian Herald Books, Chappaqua, NY
· Thomas Nelson Publishers, Nashville, TN
· James Bjornstad, Christian author
· Southern Baptist Convention, Fort Worth, TX
· Moody Press, Moody Bible Institute, George Sweeting, President, Chicago, IL
· Eternity Magazine, Philadelphia, PA
· Media Spotlight Ministries, Santa Ana, CA
· Christian radio station WEZE, Milton, MA
· Christian radio station KJIL, Oklahoma City, OK
· Christian radio station KQCB, Oklahoma City, OK
· Christian radio station KXA, Seattle, WA
· InterVarsity Christian Fellowship, San Francisco, CA

     Much of this controversy is explained in the SCP publication entitled "Witness Lee and The Local Church Movement: Controversy with Christians" is which is available from SCP for $3.00, postpaid.

     Materials are available from SCP that will assist you in understanding the Local Church movement. Please write or call for information. Spiritual Counterfeits Project. P.O. Box 4308, Berkeley, CA, USA 94704. Tel. 415-540-0300.

APPENDIX THREE

Books about Witness Lee and the Local Church.
     Some of these books have been retracted or modified as a result of interaction with the Local Church.

Barrs, J.

(1983). Shepherds and sheep. InterVarsity Press. See pp. 28, 30, 77. [references to the Local Church removed in some editions]

Bjornstad, J.

(1979). Counterfeits at your door. Regal Books. See pp.149, 150, 160.

Duddy. N.

(1979). Die Sonder Lehre des Witness Lee und Seiner Ortsgemeinde. Switzerland: Schwengler (sic)-Verlag. [out of print]

Duddy, N. and the SCP.

(1981). The God-men. InterVarsity Press. [out of print]

Cheung, J.

(1973). The ecclesiology of Watchman Nee and Witness Lee. Christian Literature Crusade. [retracted]

Fred, M. A.

(1975). Ritual as ideology in an indigenous Chinese Christian church. Unpublished doctoral dissertation, School of Anthropology, University of CA, Berkeley.

Hefley, J.

(1977). The youthnappers. Victor Books. See pp.156-160.

Kinnear, A.

(1982). The story of Watchman Nee: Against the tide. Tyndale, fourth printing. See pp.11, 15, 144, 172, 220, 221, 224, 227, 229-233, 243, 245-247.

Kirban, S.

(1980). Satan's angels exposed. Salem Kirban Publishers. See p. 6. [references to the Local Church removed in later editions]

Larson, B.

(1982). Larson's book of cults.. Tyndale. See p. 152. [references to the Local Church removed in later editions]

Lewis, D. A.

(1985) Dark angels of light. Newleaf(sic) Press. See pp.10, 13, 69, 70.

Martin, Walter.

(1980). The new cults. Vision House. See pp. 379-408.

Melton, J.

(1978) The encyclopedia of American religions. McGrath. Vol.1. pp. 440-443.

n. a.

(1977). Important Things to Comprehend in Scripture Reading. China Gospel Theological Seminary Publishing Co. (Chinese language). A collection of seven scholarly articles. See pp.79-116.

Roberts, D.

(1980). Understanding Watchman Nee.. Haven Books. See pp. 36-42, 60, 65, 126, 128, 134, 136, 137, 149, 151, 155-157.

SCP.

(1977). The God-men. [out of print]

SCP.

(1978). The God-men. China Evangelical Seminary Press [Chinese language].

Shou-Lin, T. and Y. Chung-Cheung.

(April, 1983). Boycott completely the heresies and unorthodox teachings of Witness Lee. Nanking, China: Nanking Union Theological Seminary. [Chinese language]

Sparks, J.

(1977). The mind benders.. Thomas Nelson. See pp. 219-255. [retracted]

Swanson, A.

(n.d., forward dated 1970). Taiwan: Mainline vs. independent church growth. William Carey Library Press. See pp.188-219.

Tsung-Duag, C.

(n.d.) My uncle Watchman Nee [Chinese language]. See pp. 55-60.

For publications by Witness Lee and the Local Church write to:

Living Stream Ministry
1853 W. Ball Rd.
P.O. Box 2121
Anaheim, CA 92804

EXPERT OPINION AND THE BIAS OF EXPERTS
by Brooks Alexander

     Expert witnesses often testify in lawsuits. The rules of evidence prevent most witnesses from drawing conclusions, that is, from testifying about anything other than the bare facts of the case. "Experts," on the other hand, are called in precisely for their ability to draw conclusions. Normally, expert witnesses do not say what the facts are, but what they mean - in their opinion.

     Jurors are are (sic) often baffled by the "battle of experts," in which each side presents a battery of learned men, talking about obscure, technical subjects and drawing opposite consclusions (sic) from the same body of facts. Cross-examination is particularly important in dealing with such witnesses. Close questioning of an expert will often reveal that his expertise is inadequate to support his conclusions, or that his opinions are rendered on a subject beyond his real expertise.

     When there is a default hearing, as there was in Lee v. Duddy, expert witnesses may feel encouraged to offer their opinions in a less than rigorous way, knowing that they will not be contradicted or cross-examined.

     In this case, we feel that the judge relied on opinions drawn by experts whose testimony was of little actual legal value for various reasons that we shall examine.

The Big Guns
The plaintiffs enlisted a number of experts to testify on their behalf and against SCP at their default hearing. Three of the most important were:

     · Dr. J. Gordon Melton. Dr. Melton, a United Methodist minister, is the Director of the Institute for the Study of American Religion and a visiting scholar at U. C. Santa Barbara. His doctorate was received in 1975, from Northwestern University, in the History and Literature of Religions.

     Dr. Melton criticized Duddy for relying on information supplied by ex-members, which he regards as biased and unreliable.

     According to Melton, Mr. Duddy completely misunderstood and misrepresented the history, the beliefs, and the practices of the Local Church.¹ He also testified that he could only conclude that Duddy knew he was distorting the truth.

     · John Albert Saliba, S. J. Father Saliba, a Jesuit priest, is professor of Religious Studies at the University of Detroit. He received a Ph.D. from Catholic University in Washington, D.C. His specialty and expertise is in the Anthropology of Religion.

     Dr. Saliba testified that he was knowledgeable about SCP and its printed materials, including The God-Men. He testified that our work is without merit or academic respectability. He also declared that The God-Men unfairly portrayed the plaintiffs because: 1) the book didn't mention Lee's historical roots, and 2) "the conclusions were already set at the start of the book." Finally, Saliba, like Melton, testified about Duddy's motives, and charged him with conscious misrepresentation.

     · Dr. H. Newton Malony. Dr. Malony received a Ph. D. in Clinical Psychology from Vanderbilt University. Like Melton, he is an ordained United Methodist minister and currently Director of Psychology for Fuller Seminary's Graduate School of Psychology. His credentials are in clinical psychology, his professional experience is in marriage and family counseling, and his academic interest is in the psychology of religion.

     Dr. Malony testified that he had conducted certain studies at the request of the Local Church to determine if the conclusions of The God-Men were true. As a result of his studies, he concluded that they were not true. He stated that SCP's methodology was inadequate because we relied on the testimony of ex-members and said that his study was "much fairer than the data on which the book was written."

Melton: History - After a Fashion
Dr. Melton has genuine expertise and well-deserved prestige in his area of specialty, the history of religions. His Encyclopedia of American Religions is a standard reference work that SCP routinely relies on for certain types of information.

     Outside of his expertise, strictly speaking, Dr. Melton holds theological opinions on many related subjects, as do all of us who think and write about such things. Melton himself seems eager to make that distinction. In his recently published dialogue with Dr. Ronald Enroth, Melton said:

And I have, not being a theologian - and I make no claim to be one - a difficult task in sorting through doctrinal questions to do an adequate theological analysis of most group's beliefs. I'm a church historian with most of my theological work in historical theology, not systematics ... I have a problem as to where to draw the line - what's heresy and what's evangelically kosher. What is acceptable doctrinal deviation? Evangelicals have no common line (Enroth & Melton, 1985, p. 4).

     After acknowledging his inexpertise and uncertainty in theology, Melton further emphasized that his personal leanings influence the theological judgments that he does make:

I have trouble drawing the line, and I tend to be inclusivistic rather than exclusivistic (Enroth & Melton, p. 5).

     With those disclaimers in mind, it is disconcerting to realize that Dr. Melton was allowed to express his theological opinions as an expert witness at the default hearing.

Opinions Without Expertise
Melton's criticism of The God-Men is only marginally related to his genuine expertise.

     Morgan (Plantiffs' (sic) lawyer): In what way did Duddy misrepresent the practices?
     Melton: He took sentences from the middle of the paragraph out of context and made them appear to say things they were not taking about. He misrepresented their piety, especially calling it an Eastern form of mantric prayer. He left out their history regarding the Plymouth Brethren connection.
     Judge: Does it totally misrepresent the Local Church?
     Melton: Some statements are accurate. But overall not. For example, Duddy never brings up the subject of dispensationalism, which is important to understand if you're going to understand Witness Lee's theology.

     Melton faults SCP for ignoring the Local Church's historical connections with the Plymouth Brethren movement and for ignoring the theology of dispensationalism. These charges are both untrue. The God-Men states the Plymouth Brethren connection explicitly in both text and footnote. See pp. 23-25 and p. 104 of the book, especially footnote 2 from page 24:

Some of Lee's later deviations seem to have grown out of a misapplication of Plymouth Brethren style dispensationalism - e.g., his view of the Local Church as the new and final dispensation or stage of God's plan in history (p. 148).

     Either Melton overlooked this mention or he thought it wasn't sufficient by his standards of professional historiography. Duddy did not claim to write a historical treatise, and it would not be right to subject him to judicial punishment for failing to mention a subject prominently enough to satisfy an expert on a subject different from that of his book. With respect to the standards he did claim to meet, those of systematic theology, Duddy, who is a graduate of Westminster Theological Seminary, actually has more expertise than Dr. Melton.

     Melton's second charge, that Duddy misrepresented Lee's theology, is repeated and elaborated in Melton's booklet, An Open Letter Concerning the Local Church, Witness Lee and The God-Men Controversy, published immediately after the default hearing.

     But Melton has already disclaimed having the expertise that would allow him to pass such judgments on theological matters with authority. It is the opinion of SCP, one we base on Melton's own statements, that Melton was not qualified to give expert theological opinion in this lawsuit.

     Melton's third charge is that Duddy "misrepresented their piety, especially, calling it an Eastern form of mantric prayer." He also explained to the court why he disagrees with Duddy's conclusion: first, because Eastern techniques are transmitted from guru to disciple, and there is no analagous (sic) process in the Local Church. Second, because "in the Local Church you must stay in a normal state of consciousness ... It's not like Hinduism where your consciousness is altered."

     Melton's testimony again raises the question of his theological expertise. He is again offering expert testimony outside of his field of expertise.

     The God-Men did not say that "pray- reading" and "calling on the name of the Lord" were "an Eastern form of mantric prayer." What The God-Men did say is stated on page 137 of the book ²

     The God-Men's appendix did not touch on the matter of a guru initiating his disciple as a point of similarity between Local Church practice and Eastern forms of chanting. The points of resemblance the book was concerned with were psychological in nature. What was needed was psychological expertise.

     Melton doesn't have any psychological expertise with which to invalidate The God-Men's opinion that some of the Local Church's practices bore a meaningful relationship to Eastern religious techniques. Melton's lack of theological and psychological expertise coincides with the critical points of his testimony, and the critical points of the book (The God-Men) he is condemning. When it comes to the issues that count, Melton offers discursive opinion, not knowledge or expertise.

     We believe Melton is entitled to his opinions, expertise or no, and he is entitled to express them. But without expertise his opinions are no more entitled to judicial weight than those of anyone else. Dr. Melton's religious opinions belong in print, not in court.

Expertise without Knowledge
In addition, Melton showed considerable misunderstanding of SCP's past and purposes as well as that of the history of the Local Church. We were surprised that the judge would ask Melton to speculate on the motives of the author, and even more surprised at his response:

     Judge: Why would Duddy have done this: What would his reason be?
     Melton: At one point the World Christian Liberation Front (sic) and the Local Church had headquarters across the street from each other. There were several incidents of personal confrontation where the SCP came off second best. Everything I have read can be traced to that confrontation in Berkeley. I just don't know what happened.³

     We do not believe there is any truth to this speculation.

     Of most concern to SCP in Melton's testimony is what appears to be a misunderstanding of the Local Church movement. If Melton thinks the Local Church's controversies can be traced to SCP, he can know nothing of their real history in Asia, or their early history in this country. Melton testified that it was his policy to discount and ignore the statements of ex-members in general, and that he had interviewed no ex-members of Witness Lee's group. His apparent ignorance of the Local Church's controversial past is perhaps explicable on that account.

Saliba: "Sort of Like a Hobby"
In our opinion, Father John Saliba's expertise is clearly not related to the issues of this lawsuit.

     Morgan: Do you have a specialty today?
     Saliba: Anthropology of religion, and I have had a ten-year hobby studying new religious movements.⁴
     Morgan: Are you aware of SCP
     Saliba: Yes, since 1971-72. I spent a summer in Berkeley. At that point I ran into CWLF members and kept in touch. Sort of like a hobby.⁵

     In 1981 Saliba published an article on SCP and The God-Men in The Journal of Ecumenical Studies. In his article he criticized SCP for our emphasis on what he called the "satanic principle," which he considers academically irrelevant and theologically irresponsible.

     Saliba said he had read "all the SCP materials and The God-Men." However, there seemed to be gaps in his knowledge. For example, as one of two major charges against the book, he repeated Melton's rebuke that it omits the Plymouth Brethren connection. The falseness of this charge has already been pointed out and will be evident to anyone who reads the text with attention.

     Despite his claim to have read all of SCP's publications, he said that apart from The God-Men, "the rest are two-page leaflets I would consider junk."⁶

     It seems that Saliba knows nothing of SCP's journals or newsletters, or of the numerous books and booklets published through InterVarsity Press. SCP's current catalog alone includes sixteen major literature pieces of twenty pages or more, not including our newsletters and cassette tapes.

     Saliba's second and last major charge against The God-Men is that "the conclusions were already set at the start of the book." His article elaborates this same theme. His basic reproach to SCP is that our work is academically invalid because our research is interpreted through a pre-existing religious viewpoint.

     True enough, SCP's pre-existing religious viewpoint is made basic and clear throughout our materials. Our theological assumptions are implicit in our purposes, which are also advertised in every issue of our periodicals.

     Saliba's article makes it clear that he disagrees with SCP's religious viewpoint. He is particularly critical of SCP's use of what he calls the "satanic principle." This is a matter of personal religious disagreement.

     Saliba's criticism confirms what SCP said from the outset: that the plaintiffs' lawsuit concerns a religious controversy which has no place in secular litigation.

     Saliba's credentials are in the anthropology of religion.⁷ None of the reasons he gave to exonerate the Local Church and condemn SCP conceivably fall into that field of learning. Saliba did not testify within the area of his expertise, but like Melton, offered wide-ranging opinions outside of it. Like Melton, he also gave a try at interpreting Duddy's motivation:

     Morgan: It misrepresented Witness Lee?
     Saliba: Yes, and it is a mystery how a person could have done it, who had the education that Duddy had.
     Morgan: Was it done deliberately?
     Saliba: It must have been.⁸

Malony: Testing, Testing
Dr. Malony stated that the Local Church approached him to ask if they could make use of his expert testimony in their lawsuit. Prior to that, he said, he had never heard of the Local Church or of SCP. More specifically, Malony said he "was asked to describe the extent to which the comments in The God-Men were legitimate, well-founded and true."

     As an expert in clinical psychology, Malony focused his attention on three broad conclusions drawn by The God-Men: That the Local Church uses manipulative techniques: 1) to get people into the group, 2) to conform people to the group, and 3) to keep people in the group.

     Malony began his task by comparing the information in The God-Men to the standards of experimental data in his own field of study:

I felt an inadequate methodology was used by the author. For example, why not talk to present members? Why not compare your answers with other Christian groups? Why not interview other ex-members? I felt I was seeing too much overgeneralization.⁹

Twenty Questions
In response to these perceived faults of method, Dr. Malony tried to gather some information about the Local Church in a way that loosely resembled the testing procedure of scientific psychology.

     The test that Malony devised consisted of twenty questions that touched, in one way or another, on conclusions drawn by The God-Men:

1. Were you told who to marry?
2. Were you told where to live?
3. Does the leader of your group control your finances?
4. Do leaders tell you where to work?
5. Is reading of newspapers, looking at television, and listening to radio discouraged?
6. Were you told when and where to go to school?
7. Were you ever counseled by leaders for your behavior?
8. Were you pressured to take the advice of church leaders?
9. Were you ever chastised publicly by church leaders?
10. Were you ever encouraged by church leaders to lie or deceive?
11. Was the church ever misrepresented to you?
12. As a result of church worship, did you ever feel spacy, hypnotized or out of control?
13. As a result of church worship, did you ever feel like you had to obey the leaders without thinking things through on your own?
14. Do you study the Bible on your own and do you use group helps in your study?
15. Have you ever felt brainwashed or coerced?
16. What role does Witness Lee or John Wesley have on your life?
17. Is the Local Church the only church?
18. How long have you been in the Local Church? (Or, how long were you in the Local Church?)
19. When and how did you become a Christian?
20. Who is Jesus Christ?¹⁰

     Malony's list of questions was given to five groups of test subjects:

     Group 1: 15 current members from the membership list of a specific Local Church in Southern California (list supplied by the Local Church).
     Group 2: 15 current members from the membership list of a different Local Church in Southern California (list supplied by the Local Church).
     Group 3: 13 ex-Local Church members selected from a list of 16 supplied by the Local Church.
     Group 4: 7 members of a United Methodist Church in Southern California.
     Group 5: 7 members of a different Methodist Church in Southern California.

     Each subject received a copy of the questionnaire and answered the questions verbally in a later telephone interview with Dr. Malony.

     Even at this point, Malony's methodology provokes some serious questions. It is obvious, for example, that group number three, the ex-members, is not a random sample. It is a sample selected by the ostensible subject of the study, the Local Church. The pivotal data of the "experiment" is thus seriously flawed because of the selective bias in the acquisition of subjects. Malony himself acknowledged as much:

I asked the Local Church to provide me with a list of ex-members. They did provide me with 15 or 16 people, and I contacted 13 of them. This was not a random sample, but I asked the Local Church to give me as many as they could find. This is not fully controlled and I know that.¹¹.

     Malony's sample was flawed in more ways than one. His test was not only characterized by uncontrolled variables, as he acknowledged, but also by poor subject selection and poor subject matching. In addition, three of the five groups of test subjects were selected by the movement being studied, the Local Church. Thus, the experiment was not just uncontrolled, it was also flawed because the study was influenced by the group that was under examination.

     Since Malony had already admitted that his experiment was uncontrolled, why did he proceed full speed ahead to issue judgments about SCP and the Local Church based upon it? Malony explained his own lapse in methodology by lapsing into an unrelated polemic. He downgraded the importance of group number three, the ex-members' group, by echoing Melton's policy of prejudice against ex-members' testimony.

     But let us put that question aside for the moment and defer to the major point. Regardless of what Dr. Malony thinks of ex-members' reports, his experiment is not objective, is uncontrolled, and therefore not a basis for definitive conclusions about the Local Church.

"Did You Ever Feel Spacy...?"
The content of Malony's test was as faulty as its methodology. The focus of his inquiry was mind-control, but Malony has no expertise or qualifications in the study of mind-control. As a result, the questions he asked produced answers of little relevance to the subject he was trying to address.

     Some of his questions were merely naive. Examples: Question number twelve, "As a result of church worship, did you ever feel spacy, hypnotized, or out of control?" Question number fifteen, "Have you ever felt brainwashed or coerced?"

     Much of Malony's questionnaire was really an attitudinal survey, not a factual inquiry. Such questions produce answers that are of dubious value in themselves, even if we disregard the dubious methodology that lies behind them.

     On the one hand, it is not hard to sympathize with the difficulties Dr. Malony faced. He was a "stranger in a strange land," called upon to analyze an unfamiliar group on the question of mind-control - an area in which he had no expertise.

     On the other hand, it is hard to understand why Malony nevertheless felt he could say that his sampling was "much fairer than the data on which The God-Men was written."

     In preparing The God-Men, SCP was not conducting a psychological experiment. We were trying to make sense of information on hand and information incoming. The Local Church was the center of controversy, and we were trying to understand why. To declare that such a way of proceeding is invalid, is to declare that the methods of experimental psychology are the indispensible (sic) basis of religious commentary.

     The phenomena that The God-Men is concerned with are too large and too subtle to be snared by Malony's questionnaire. It certainly does not support the conclusions that he claimed to draw from it.

Attitudes and Expertise
The testimony of all these experts has a common problem: the conclusions they reached are beyond their stated area of expertise. As a result, their opinions - whether of the Local Church or of SCP - are based more on personal attitudes than on credentialed knowledge or skills. What they see and what they say are a function of their intellectual and religious viewpoints, not of specialized expertise. The resulting testimony is not "expert opinion"; it is the personal opinion of people who happen to be experts.

     At best, expert opinion has an ambiguous truth-value in lawsuits to begin with. Trial attorneys recognize that there is considerable flexibility in the use of expert testimony, because learned conclusions can differ over the same set of facts. When the facts in question relate to a field of study as subjective and impassioned as that of "religion," this problem is magnified many times. When religionists are given a one-sided hearing, the problem is virtually uncontrollable.

     The speculations of religious and academic axe-grinders about their opponents' attitudes are not an adequate basis for judgment. In particular, they are an inadequate basis for judicial punishment. It is utterly inappropriate to use unopposed and uncross-examined "expertise" as a prop for punitive damages based on state-of-mind judgments in a religious controversy. Scholarly disputants should not be allowed to turn their partisan zeal into a judicial cudgel to punish a member of the opposition who happens to be legally defenseless.

     Despite the fact that these expert witnesses projected an aura of authority and stated their opinions in strong and definite terms, their testimony added little of real substance or weight to the plaintiffs' case. We believe that cross-examination would have revealed that their conclusions were as defective as their basis for drawing them.

© by SCP

Footnotes

1. From notes taken by SCP staff during the default hearing.
2. We do not feel we can provide any further comment on this subject, which indicates the "chilling" effect this lawsuit has had.
3. From notes taken by....
4. The anthropology of religion is the study of religion as a cultural phenomenon. It asks, "How does religion relate to culture?" This field of study analyzes the religious development of man as regards his origin, nature, races, customs, etc.
5. From notes taken by....
6. From notes taken by....
7. The anthropology of....
8. From notes taken by....
9. From notes taken by....
10. From notes taken by....
11. From notes taken by....

References

Enroth, R. & Melton, J.

(1985). Why cults succeed where the church fails. Elgin, IL: Bretheren (sic) Press.

Webmaster's Note: Every effort was made to maintain the orginal format of this document. Minor changes in structure and acknowledgment of spelling errors (sic), have been made where necessary. A copy of the original document is on file with this ministry.

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