The First Amendment in the Dock

Comal County has become ground zero for legal debates on the First Amendment. The Monique Rathbun lawsuit against the Church of Scientology and the criminal case against Justin Carter hinge greatly on questions concerning the parameters of the First Amendment and the intent of the parties involved. Both cases have drawn international attention to our county.

Harassment or Expression of Rights?
Monique Rathbun says the Church of Scientology orchestrated a campaign of harassment against her. The Church says it was only utilizing its freedoms of religion and assembly.

In its Anti-SLAPP motion (Anti-Strategic Lawsuit Against Public Participation), the Church claims that Rathbun's lawsuit is violating its First Amendment rights. The organizations and people involved in the notoriously wealthy and autocratic church say they weren't harassing Rathbun, but protesting her husband, Marty Rathbun, who has publicly criticized the Church and its leader, David Miscavige. Marty was once a high-ranking member of the Church. Monique was never a member.

The Church claims that Marty's public pronouncements make him a public figure and that those who had confronted the Rathbuns were loyal Church members upset at his criticisms. They also state that his continuance of practicing Scientology outside the Church violates the religion's copyright and trademark laws, thus justifying not only the "protesters" but the private investigators the Church admits to hiring to watch the couple.

Here, then, the case becomes one of competing First Amendment rights: The right of Marty to speak against the Church and to practice his chosen faith, and the right for people to assemble against someone who offends them. However, before the confrontations began, Monique had never publicly criticized the Church, who considers her collateral damage.

Monique's attorney, Ray Jeffrey, is arguing that the significance is in the intent of the Church. He has called for evidence, which the court approved, that he says will show that the goal was never to protect and defend the faith, but to harass and disrupt the lives of the Rathbuns. The Church of Scientology International's attorney, Richard Cedillo, has argued that intent does not matter in First Amendment issues.

This will be one of the many sticky issues that Comal District Judge Dib Waldrip will have to decide.
Monique will make her case against the Church's Anti-SLAPP motion on Feb. 3.

Satire or Terrorism?
Justin Carter does not deny that he made a Facebook comment that appeared to threaten an attack on a kindergartener class. However, he argues that the comment was meant as a joke, albeit a poor one. The State argues that the comment was a terroristic threat.

This case is conflict of two speech issues: Satire, regardless of taste, is protected speech, but free speech does have limits and one of those limits is speech that invokes terror.

There are two problems in this case. One is that satire, even to an experienced writer, is hard to pull off. The spoken word depends primarily on tone of voice, whereas the written word has to effectively utilize grammar and punctuation to let the reader know that the writer is being satirical. Justin Carter is not a professional writer, so the court has to judge his comment by context.

This dovetails with the second problem, which is that the original thread that contained the comment has disappeared from Facebook, (and confirmed by Facebook), making the case more difficult for both defense and prosecutor.

An important point to remember about the Carter case is that it is a criminal case, so the burden is on the State to prove beyond a reasonable doubt that Carter intended to actually attack a kindergarten. This is a difficult hurdle considering investigators found no weapons in his possession and no actual plans to make an attack. The state's claims on past bad behavior by Carter (which may or may not be exaggerated) do not descend to the level of killing children.

The next step in the case is an evidentiary hearing before Comal District Judge Jack Robison on Jan. 28.

Can Ban Watch
The TX Citizen is still waiting for visiting Judge Don Burgess' ruling on the City's can ban and cooler ordinances. Both sides asked Burgess in December to make a ruling in the suit, which has dragged on since 2007. Burgess said he would try to make a ruling by Jan. 17 but made no guarantees. The TX Citizen will post the Judge's decision on our Facebook page at, and will follow up with a story in our next issue.

Nick Rogers covers courts and crime for the TX Citizen.