7 appeals judges protest deprogramming ruling

Associated Press/August 27, 1998
By Bob Egelko

San Francisco -- Seven federal appellate judges said Wednesday that free speech was threatened by their court's ruling upholding $1.09 million in damages against an anti-cult organization for its role in trying to "deprogram" a Washington state teen-ager.

"We have taken a great leap backwards in the protection of First Amendment freedoms," Judge Alex Kozinski, writing for the seven, said in arguing that the 9th U.S. Circuit Court of Appeals should reconsider the ruling.

He said the Cult Awareness Network did not employ the deprogrammer or approve his actions and was bankrupted by the ruling.

But the court said the request for a rehearing had failed to gain a majority vote among the court's 21 active judges. Under its rules, the vote total was not announced.

The ruling could be appealed to the Supreme Court.

In a 2-1 ruling April 8, a panel of the court upheld a jury's verdict that found the Cult Awareness Network responsible for a volunteer's actions in referring a Kirkland, Wash., woman to a deprogrammer. CAN, based in Illinois, was formed to advise families who feared their loved ones were involved with cults.

The woman, Kathy Tonkin, joined the Life Tabernacle Church with her six children in 1991. She left two years later, but her three oldest sons wanted to stay.

Using a local hotline, Tonkin contacted Shirley Landa, a volunteer who was CAN's Washington state contact and was also affiliated with other cult-related organizations. She referred Tonkin to Rick Ross, whose deprogramming practices had been shown on CBS' "48 Hours."

Ross deprogrammed two of Tonkin's sons, aged 16 and 13, but the oldest son, Jason Scott, 18, resisted after being abducted and held captive for five days, the court said.

Ross, of Phoenix, was acquitted by a jury of a criminal charge of unlawful imprisonment. But in a civil damage suit, a federal jury awarded Scott $4.875 million in damages against Ross, his associates and CAN in 1995. The verdict included $87,500 in compensatory damages and $1 million in punitive damages against CAN.

The organization filed for bankruptcy less than a year later, citing the verdict as one of the reasons. A member of the Church of Scientology, CAN's longtime nemesis, then bought the rights to the network's name.

In the April ruling, the appeals court said the jury was entitled to find that Landa, who had referred Scott's mother to Ross, was acting on CAN's behalf.

CAN functioned through its local contact people and, according to its president, authorized them to tell the public they were acting on the organization's behalf, the court said. It also said CAN had previously referred people to Ross. On another issue, the court said CAN was not being punished for its speech or associations.

In Wednesday's dissent from the denial of a rehearing, Kozinski said CAN knew nothing about the referral to Ross or his attempt to deprogram Scott, and had no control over it. He said CAN had referred callers to people who would perform involuntary deprogramming on minor children, a legal practice as long as no violence is used. The organization opposed the involuntary deprogramming of adults.

"CAN effectively died as a direct result of this judgment, and the mission its supporters set out to accomplish died with it," Kozinski wrote. "This result is troubling regardless of where one falls on the political spectrum."

By the same logic, he said, Planned Parenthood could be sued if it referred a minor to a doctor who performed an abortion without parental consent, and the National Rifle Association could be held responsible if a field representative provided a gun to a minor, actions that violated the law as well as the organizations' policies.

Kozinski's dissent was joined by Judges Harry Pregerson, Stephen Reinhardt, Andrew Kleinfeld, Michael Hawkins, A. Wallace Tashima and Margaret McKeown.

The case is Scott vs. Ross, 96-33050.