Electronic Frontier Foundation Media Release
Conviction of Scientology Critic Raises Free Speech Issue
Electronic Frontier Foundation Concerned US Court Violated Free Speech
For Immediate Release: June 22, 2001
Cindy Cohn, EFF Legal Director,
+1 415 436 9333 x108 http://www.eff.org/Legal/Cases/Scientology_cases/20010622_eff_henson_pr.html San Francisco - The Electronic Frontier Foundation (EFF) today expressed concern over a California court conviction of H. Keith Henson in a case involving online criticism of the Church of Scientology (CoS). In a decision which appears to have violated his constitutional right to free speech, a jury in Riverside County convicted Henson of threatening the free exercise of religion by members of the CoS. "We are deeply concerned that the decision violates Mr. Henson's free speech rights," said EFF Legal Director Cindy Cohn. "Since he does not appear to have made any credible threat of physical attack as required for conviction under the U.S. Constitution, Mr. Henson has a legal right to express criticisms online without fearing a prison term." On April 26, 2001, Henson was convicted of threatening to interfere with the CoS members' freedom to enjoy their constitutional right to the free exercise of religion. Although official trial documents are not yet available, the verdict seems based on Henson's activities while picketing the CoS desert compound and postings on the Internet alt.religion.scientology newsgroup. It appears that the postings admitted into evidence included only fragments of longer postings or threads taken out of context. For example, the defense was apparently prohibited from showing that a comment about "cruise missiles" was made in response to a joke about actor Tom Cruise. The trial judge also allegedly forbid Henson from explaining why he was protesting Scientology. Henson was also accused of making and attempting to make terrorist threats against the CoS, however the jury convicted only on a single misdemeanor charge under a California "hate crime" statute. EFF is concerned that the jury may have convicted Henson on this one charge based on misinformation and mislabeling of evidence introduced at trial. The basic requirements for conviction under California Penal Code section 422.6 are that "force or the threat of force" must be involved and that "the speech itself threatened violence against a specific person or group of persons and that the defendant had the apparent ability to carry out the threat." Neither of these requirements appear to have been met in Henson's case. For instance, Henson's discussions apparently included long-range missile systems in connection with the CoS desert compound. Such statements seem inadequate to substantiate a reasonable fear that he would actually launch or have the ability to launch a missile attack against anyone. Furthermore, a recent decision by the 9th Circuit Court of Appeals, Planned Parenthood v. American Coalition of Life Activists, clarified that strong advocacy is protected expression stating, "it doesn't matter if the speech makes future violence more likely; advocating 'illegal action at some indefinite future time' is protected." Following his conviction, Henson took refuge in Canada where, based on information Scientology sent to authorities, he was arrested in a shopping mall parking lot, by a heavily armed paramilitary unit. However, Canadian officials later released Henson and accepted his application for asylum. In a May 30th phone interview with the Toronto Star newspaper, Henson's wife said that he is being targeted by the CoS because he has been working to expose the group as a crime syndicate for five years. EFF Executive Director Shari Steele commented, "EFF is deeply disturbed by these possible violations of Mr. Henson's constitutional rights. This trial seems intended to punish Mr. Henson for his opposition to a powerful organization, using the barest thread of legal justification to do so. EFF joins Mr. Henson's American counsel in urging the California Court of Appeals to set aside this verdict and confirm Mr. Henson's right to protest publicly a group that he opposes."