Comment on LSU-3 Case Moves Forward in Riverside Court by David Read.
Ken, I haven’t formally researched the issue, so I’m not giving a formal legal opinion. However, I don’t think an inadvertent recording of a conversation among four people is a “work” of intellectual property for purposes of the copyright law. It isn’t like a book, a computer program, sheet music, or a musical recording. So I don’t think that concepts like copyright and public domain really apply to the recording in question.
It is also known that Darnell himself sent out copies of the recording to Spectrum and others. From there it was heard by many people, and transcribed, and was ultimately heard by Ricardo Graham, who used it as the reason for demanding resignations from the four people whose conversation was recorded.
Presumably, had the four chosen not to resign, the recording would have been featured prominently in any administrative action or faculty hearing to remove the four from their positions.
Then, three of the people filed a lawsuit alleging that it was unlawful for Graham to use the recording as a basis to demand their resignations from various posts at La Sierra. The details of the recording will doubtless become known during the discovery process in the civil lawsuit.
After the lawsuit was filed and became big news within the Adventist denomination, hundreds more people listened to the recording and have frequently commented about the particulars and details of the recording on public forums such as Spectrum’s website.
So, at this point, I believe that the recording has become news, and very compelling news within the Seventh-day Adventist community of North America. Hence, I think that the recording may be posted and discussed by bloggers and news organizations under the protection of the First Amendment right of freedom of the press to report on, and blog about, public news stories. Since that is the case, a lawsuit filed or even threatened against such a blogger or news organization would probably cause the filer to be liable under California’s Anti-SLAPP statute.
SLAPP stands for “Strategic Lawsuit Against Public Participation” and SLAPP suits frequently allege defamation, libel, slander and invasion of privacy. The California anti-SLAPP law was enacted to protect the petition and free speech rights of Californians.
California’s anti-SLAPP statute provides for a special motion to strike a complaint where the complaint arises from activity exercising the rights of petition and free speech. In addition, SLAPP victims can recover their attorneys fees and other damages through a SLAPPback (malicious prosecution action) against the original SLAPP filers and their attorneys after the underlying SLAPP has been dismissed.
The anti-SLAPP statute is designed to “level the playing field” and discourage entities with deep pockets from using the threat of lawsuit to intimidate smaller entities with limited ability to pay legal fees into choosing not to exercise their right of free speech and public participation.
David Read Also Commented
LSU-3 Case Moves Forward in Riverside Court
Holly, the word “illegal” is broad, and requires more than a one word, yes or no answer.
What the trial court ruled in the LSU-3 case, response to the church’s demurrer, is that the recording was not made in violation of California state wiretapping laws. In other words, the making of the recording was not a criminal act because it was not made with criminal intent, but was made inadvertently. So the recording is legal in the sense that it did not violate a criminal statute.
Here’s the part of the transcript where the court made that ruling:
* * * *
“Of course, I’m familiar with Penal Code Section 832.21. La Sierra argues there’s no allegations that Darnell intentionally activated the tape recorder, in violation of the Penal Code, and that even if he did, La Sierra could not be held liable under Warden versus Kahn, which is a 1979 case, 99 Cal.App.3d 805. . . . Here there’s no allegation that Darnell recorded the private conversation with, quote, “intent to do so.” Instead, the complaint alleges that Darnell recorded the faculty meeting, but that the board member, I’m assuming refers to Mr. Darnell, was unaware at the time that the digital recording contained anything other than a recording of the special faculty meeting. So I would then, tentatively, indicate that I would sustain the demurrer only as to the first cause of action, since it’s based upon a statutory violation, and is not alleged that the tape recording occurred with the requisite, quote, “intent.”
* * * *
However, it seemed to me from reading the transcript that the court was hinting that the use of the recording in this case to effectively force Bradley to retire, and the 3 other people to relinquish their administrative positions, may have been tortious. The part of the transcript I refer to is here:
* * * *
MR. CONNALLY: Your Honor has found that they didn’t violate the law. So that 17,200 claim needs to fall.
THE COURT: I didn’t find that they didn’t violate the law.
MR. CONNALLY: Well, Your Honor, I’m sorry. I maybe overstated it.
THE COURT: Yeah, I think you did.
MR. CONNALLY: What you found was that they had not pled that there was an intentional recording —
THE COURT: Correct.
* * * * *
This portion seems to indicate that the judge may think that, although the recording itself did not violate criminal wiretapping statutes, there is something else about the recording or its use by Ricardo Graham in this case that was “illegal.” Or at least that is what I would infer from the court’s comments.
LSU-3 Case Moves Forward in Riverside Court
Holly, as to whether we can discuss the details of the recording online, I think we can. The cat’s out of the bag, now. They’ve been discussing it at Spectrum for a long time, and they’re discussing it again today.
A public court case where three employees have sued LaSierra and several other church affiliated entities makes the recording news. I think any threat to sue websites over that material would be a transparent attempt to muzzle a free press, and an obvious violation of California’s Anti-SLAPP statute, which was drafted to protect people against being sued for exercising their First Amendment rights.
But the final decision is obviously up to the moderator of this site.
LSU-3 Case Moves Forward in Riverside Court
Holly, I think Sean Pitman is moderating this site pretty much by himself. Shane Hilde is focusing his energies on a new site, Advindicate.com. I’ve written a couple of articles for that site.
BTW, I stand by what I’ve said previously. California law is very protective of folks who are sued essentially to muzzle their First Amendment right of free speech, so I don’t think there is much danger in anyone suing Sean or Shane on the pretext that details of the recording are being discussed on this site. Anyone who did that would be more likely to end up with a judgment against himself than against Sean or Shane.
Recent Comments by David Read
The God of the Gaps
“What if one does not start off with any starting assumptions as to a God or not but just uses empirical knowledge to look for explanations as to why things occur? Isn’t this a more objective approach?”
What you’ve just said, Ken, is “why don’t we assume that if God exists, to exist is all that God has ever done, and look for naturalistic explanations for things.”
The pretense of scientists to objectivity is by far the most annoying thing about scientists. As currently defined by the high priesthood of science, the job of science is to find naturalistic explanations for things, “no matter how counter-intuitive, no matter how mystifying to the uninitiated. Moreover, that materialism is an absolute, for we cannot allow a Divine Foot in the door.” If there’s another profession that has such an iron-clad philosophical commitment of any kind, I don’t know what it is.
I deny that anyone is unbiased and objective, least of all anyone with even the most superficial interest in the origins controversy. Believers are biased because we are believers in God, and the power of God to speak the creation into being. Scientists are biased because naturalism is the sine qua non of mainstream science. Even those scientists who privately believe cannot put that belief into practice in their professional careers, or said careers would come to a very abrupt and nasty conclusion.
NCSE Report: Adventist Education in the Midst of a Sea of Science
@Shayne: Shayne, that’s a good question. And the answer is, WASC is really on very thin ice demanding that a sectarian school teach against the beliefs of its denominational sponsor. And I think they understand that. La Sierra would be a very sympathetic plaintiff if it filed a lawsuit against WASC on First Amendment freedom of religion grounds, complaining to the court, “hey, WASC is abridging our freedom of religion and freedom of association rights.”
So WASC is not trying to directly dictate on the level of teaching. The approach WASC is taking is a more oblique, indirect approach of “institutional autonomy,” meaning that they are saying that university must have certain freedom to operate regardless of denominational affiliation. So they are demanding changes in the make up of the Board of Trustees. The goal is the same: to allow the college, with the complete support of Randal Wisbey, to continue to teach Darwinism without having to answer to a Board of Trustees that might be sympathetic to traditional Adventist beliefs.
Our colleges (with a few exceptions) are affiliated with the denomination at the union level, and the union conference presidents are ex-officio chairmen of the boards of the colleges. (So Ricardo Graham, by virtue of being president of the Pacific Union, is chairman of the Board of Trustees of La Sierra.) The conference presidents of the constituent conferences of a union are also on the board of a union’s college. Thus, church employees form the core of the boards of all our colleges, effectively giving control of the institutions to the church.
Now, this is what WASC is saying is inappropriate; they want to change the structure of the board to have fewer church employees and more independent directors, which they are arguing will give the University more operational autonomy. (Unfortunately, Ricardo Graham made something of a misstep by directly forcing the “LSU Four” to resign. He should have gone through proper channels, and insisted that Wisbey do that. If Wisbey would not fire the four, Graham should have used his political skills to get a majority on the Board of Trustees to agree to fire Wisbey. The way Graham did it, going around Wisbey, just gave a nice lever to Wisbey and WASC to make the charge that La Sierra does not have enough autonomy, and the board must be changed.)
Now, think about what happens if Wisbey and WASC are successful in forcing a change to the composition of La Sierra’s Board of Trustees: a precedent has been set, a blueprint has been drawn up for how to separate all of the Adventist colleges from denominational control. This is a very high stakes game; it is winner take all, all of SDA post-secondary education. I wonder if people realize how high the stakes really are.
Now, I do not want to be too hard on our church leaders. The situation that we’re facing at La Sierra (and will face again and again and again in coming years) is greatly complicated by the fact that the Adventist church is now composed of constituencies at cross purposes. There’s a large constituency of non-believing, cultural Adventists who WANT Darwinism taught at La Sierra. That’s what they believe, and they claim to be Adventists, so why shouldn’t it be taught at an Adventist university? This constituency probably preponderates in the Pacific Union, which is why we have the situation we do at La Sierra. On the other hand, the larger church is still literal-week creationist, and we probably still preponderate in North America, and we don’t want Darwinism taught as truth in Adventist institution. So the leadership is being torn apart from two directions. I pity them.
“God wants all of the classes taught in our schools to be centered in Scripture. God does not want religion to be ‘incidental’ to the subject. That includes biology.”
Beautifully stated, Richard. It really is appalling that La Sierra embraces the notion that its own “secular” curriculum is religiously neutral, when the whole point of Adventist education is that there are no “secular” subjects. I’ve just written an article on this very theme for Advindicate (it hasn’t posted yet). The greatest irony is that the best statement of the Adventist philosophy of education is from a legal brief, a friend-of-the-court brief in Mitchell v. Helms, co-authored by Alan Reinach, director of religious liberty for the Pacific Union Conference:
“Since the goal of math class is to connect the student’s mind with the mind of God, and to develop both the mind and the character in the twin pursuits of both education and redemption, then any aid given to the ‘secular’ pursuit of ‘mere’ arithmetic also aids ‘Religious Instruction.’ The entire premise of religious education is that it is entirely sacred, not secular. It is holistic, not dualistic. Religion is part of the warp and woof woven into the fabric of life in a religious school. There are no secular subjects.”
“Did god directly create biological species? You seem to indicate a belief in creation of kinds and then evolution of species by natural mechanisms ie macroevolution this is at least a belief of progressive creationism and is denied by YEC.”
Pauluc, the idea that God created basic kinds of animals that then diversified, giving us the large number of “species” that we have today, is a young-earth creationist (YEC) model. It has not been denied by knowledgeable young earth creationists for a century. Kurt Wise writes, “In perhaps as few as three centuries, scores of new species arose within most mammal baramins, and thousands of species arose within many of the insect and plant baramins.” Leonard Brand writes, “According to the theory presented here, much of our current taxonomic diversity has been the result of limited evolutionary change after a worldwide catastrophe. The original groups of plants and animals have diversified into multitudes of species as they adapted to fill specific niches in the changed conditions after the catastrophe.” These scientists are both young earth creationists. So this concept has been YEC orthodoxy for a very long time.
“Of course you do know that people like David Read, Bill Sorenson or Kevin Paulsen might consider you a heretic since you do depart from the YEC of GMP.”
I assume GMP is George McCready Price. Price did not deny a rapid post-Flood speciation. To the contrary, he promoted this concept in his writings. He wrote:
“If the Seventh-day Adventist people will all get behind these two ideas, Flood geology and plenty of species-making since the Flood, . . . I believe it would not be long before the scientific world would sit up and take notice.”
The main area where modern YEC theorists disagree with Price is that Price denied order in the fossil record, whereas modern exponents of YEC typically explain the order in the fossil record as the result of ecological zonation or biome succession. I disagree with Price in his insistence that there is no order in the fossil record. His examples were all from orogenous zones and reflected post-Flood (or at least post-original deposition) mountain-building activity. Another area where modern YECers disagree with Price is that Price denied the post-Flood glaciation, whereas most modern YECers acknowledge that there was a relatively short post-Flood Ice Age.
But these geological issues have little connection to the biological issues you are debating with Sean. The astonishing complexity of life at the cellular and molecular level was unknown in Price’s day, so I’m not sure that there would be any disagreement between Price and Pitman.
Supreme Court Decision on Church Employment Case
Bill says, “By the way, The Moral Influence Theory is not wrong in what it affirms, it is only wrong in what it denies.”
That is exactly right, Bill. The problem with Maxwell’s atonement is not that it affirms moral influence but that it denies substitution. If you have substitution, then you also have moral influence, but if you don’t have substitution, then you don’t have moral influence either.
There’s nothing admirable about a person who throws himself in front of a bus and dies, but there is something very admirable about a man who pushes a child out of the way of bus, but is hit and killed himself. The former is just a suicide, but the latter is self-sacrificing love. The former is not morally influential, the latter is.
If Jesus did not have to die to accomplish the atonement, then it isn’t morally edifying that He allowed himself to be killed. But if Jesus did have to die to accomplish the atonement, then the fact that he allowed himself to die the death of the cross is tremendously moving and morally edifying.
Bill, the thing that worries me about you, Jim Roberts, and Kevin Paulson is that your faith plus works model of salvation seems to end by denying the substitutionary atonement. Evidence of this is in how Jim Roberts reacted to Elder Jackson’s sermon on substitutionary atonement. Instead of praising Jackson for going into the heart of Maxwell country and preaching on substitutionary atonement, Roberts immediately attacked Jackson for, apparently, failing to emphasize regeneration and obedience.
You guys are so hung up on works that you cannot recognize the astonishingly good news of the substitutionary death of Christ. You hear a sermon like Jackson’s and instead of saying “Amen!” you immediately start in attacking him for not addressing sanctification.
Everyone who reads “Educate Truth” knows that I don’t carry water for Dan Jackson. I was critical of him when he met with the La Sierra facility and apologized to them–and said that David Asscherick needed to be “spanked”—when what they needed to hear was that the church has doctrines that they are expected not to attack and undermine, and that when they do, there will be legitimate, justified concern about what they’re doing.
But there was nothing wrong with what Dan Jackson preached at La Sierra the other day. It was biblical truth, and truth that had been denied by an influential local theologian. He deserves praise for that sermon, not nitpicking.