The E-Meter Papers

E-meter Case, February 5, 1969


    The FOUNDING CHURCH OF SCIENTOLOGY OF WASHINGTON, D. C., et al.,
      Appellants, v. UNITED STATES of America, Appellee No. 21483

      UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
                              CIRCUIT

    133 U.S. App. D.C. 229; 409 F.2d 1146; 1969 U.S. App. LEXIS 9065;
                         13 A.L.R. Fed. 721

                    February 5, 1969, Decided

SUBSEQUENT HISTORY: [**1]

Petition for Rehearing Denied April 18, 1969.

CORE TERMS: religious, religion, auditing, labeling, seizure,
church, misleading, disease, First Amendment, cure, food,
pamphlet, seized, misbranded, falsity, curative, secular, Fourth
Amendment, auditor, healing, meter, condemnation, engrams,
regulation, general public, misbranding, processing, molasses,
prima facie, promotional

JUDGES: Wright, McGowan and Robinson, Circuit Judges. McGowan,
Circuit Judge (dissenting).

OPINION BY: WRIGHT

OPINION: [*1148] J. SKELLY WRIGHT, Circuit Judge:

This is an appeal from a judgment and decree of condemnation and
destruction against several electrical instruments and a large
quantity of literature owned by claimants-appellants, The
Founding Church of Scientology of Washington, D.C. and various
individual adherents of that organization. The instruments and
literature were seized by the Food and Drug Administration as
"devices" with accompanying "false and misleading labeling"
subject to condemnation under the Food, Drug and Cosmetic Act, 21
U.S.C. 301 et seq. (1964). The Government further charged that
the [**2] instruments were "devices" lacking "adequate directions
for use," in further violation of the Act. n1 After a jury trial,
a general verdict "for the Government" was returned, and a
judgment and decree of condemnation was entered.

n1

"Any * * * device * * * that is * * * misbranded * * * while in
interstate commerce * * * shall be liable to be proceeded against
* * * and condemned in any district court of the United States
within the jurisdiction of which the article is found * * *."

21 U.S.C. 334(a).

"A drug or device shall be deemed to be misbranded --

"(a) False or misleading label.

"If its labeling is false or misleading in any particular.

* * * "(f) Directions for use and warnings on label.

"Unless its labeling bears (1) adequate directions for use * * *."

21 U.S.C. 352.

"The term 'interstate commerce' means * * * (2) commerce within
the District of Columbia * * *."

21 U.S.C. 321(b).

Appellants contend that the seizure of the articles [**3]
violated their Fourth Amendments rights, that the proceedings
interfered with the free exercise of their religion, and that the
evidence was insufficient to sustain the verdict. Because we find
that much of the literature relied [*1149] on by the Government
to establish misbranding was not "labeling" n2 within the meaning
of the statute as interpreted in the light of the First
Amendment, we reverse.

n2 As defined in 21 U.S.C. 321(m), the text of which is set out
in Note 15, infra.

I

At the outset, we confront appellants' claim that the disputed
instruments and literature, the res of this lawsuit, were seized
in violation of the Fourth Amendment. The Act provides that
misbranded devices "shall be liable to be proceeded against * * *
on libel of information," n3 and that such devices "shall be
liable to seizure by process pursuant to the libel, and the
procedure in cases under this section shall conform, as nearly as
may be, to the procedure in admiralty * * *." n4 The applicable
procedure in [**4] admiralty at the time of the seizure was
provided in former Admiralty Rule 21, the text of which is set
out in the margin. n5

n3 21 U.S.C. 334(a).

n4 21 U.S.C. 334(b).

n5 "All informations and libels of information upon seizures for
any breach of the revenue, or navigation or other laws of the
United States, shall state the place of seizure, whether it be on
land or on the high seas, or on navigable waters within the
admiralty and maritime jurisdiction of the United States, and the
district within which the property is brought and where it then
is. The information or libel of information shall propound in
distinct articles the matters relied on as grounds or causes of
forfeiture, and aver the same to be contrary to the form of the
statute or statutes of the United States in such case provided,
as the case may require, and shall conclude with a prayer of due
process to enforce the forfeiture, and to give notice to all
persons concerned in interest to appear and show cause at the
return day of the process why the forfeiture should not be
decreed."

7A J. MOORE, FEDERAL PRACTICE para..30, p. 236 (2d ed.1968).

[**5]

The Government complied with the procedures required by statute
and rule in this case. Pursuant to the inspection provisions of
the Act, FDA agents visited the Founding Church of Scientology,
obtained a demonstration of the instrument later seized, and
bought copies of the literature later alleged to be "labeling" of
the instrument. The United States Attorney then filed a libel of
information with the District Court, describing the instrument
and literature and averring that together they constituted a
"device" and accompanying "false or misleading labeling" subject
to condemnation under the Act. The court ordered issuance of a
warrant authorizing seizure of the instruments and literature,
and public advertisement of the seizure. FDA agents and United
States Marshals carried out the seizure on January 4, 1963, at
various premises owned by appellant Founding Church and its
affiliates, after service of the warrant of attachment.

Appellants n6 contend that seizures such as this are governed by
the warrant clause of the Fourth Amendment, which provides that
"no Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be
[**6] searched, and the persons or things to be seized." Since in
appellants' view the warrant of seizure was not issued "upon
probable cause, supported by Oath or affirmation," they contend
that the exclusionary rule bars the use in evidence in a
condemnation proceeding of the matter seized.

n6 Appellants appeared as claimants to the seized goods in the
District Court, and demanded a jury trial, under 21 U.S.C.
334(b).

In arguing the Fourth Amendment issue, the parties have
concentrated chiefly upon the question whether the exclusionary
rule applies to condemnation proceedings under the Act. n7
Because we find [*1150] that the seizure in this case was
"reasonable" under the applicable Fourth Amendment standards, we
do not reach that question.

n7 See One 1958 Plymouth Sedan v. Com. of Pennsylvania, 380 U.S.
693, 85 S. Ct. 1246, 14 L. Ed. 2d 170 (1965); Boyd v. United
States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746 (1886); but see
United States v. 2000 Plastic Tubular Cases, etc., 3 Cir., 352
F.2d 344 (1965), cert. denied, 383 U.S. 913, 86 S. Ct. 891, 15 L.
Ed. 2d 667 (1966).

[**7]

The Fourth Amendment protects "the right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures." It gives procedural form to
this sweeping protection through the warrant clause, which
requires that a magistrate review the decision to arrest or
search except in exigent cases. The often stated purpose of this
requirement is to interpose a relatively detached and independent
decision maker between the privacy of the individual and the
otherwise unchecked zeal of enforcement officials. n8

n8 Camara v. Municipal Court of City and County of San Francisco,
387 U.S. 523, 532-533, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967);
Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 92 L.
Ed. 436 (1948).

Though warrants are generally necessary for arrests of persons
and for searches, the warrant requirement has not traditionally
been imposed upon seizures of the type involved in this case --
attachment of property in the course of civil proceedings. This
does [**8] not mean that the Fourth Amendment does not apply to
such seizures, in both its substantive prohibition against
unreasonable seizures and its procedural requirement of judicial
or quasi-judicial review of the decision to seize. It means
merely that judicial restraint is imposed through a different
form of proceeding than the showing of probable cause before a
magistrate. In the case of ordinary civil attachments, the
details of such proceedings are, even in the federal courts, left
to state law. n9 In cases in admiralty, the process is governed
by the Admiralty Rules, lately recodified as a supplement to the
Civil Rules. n10

n9 Rule 64, FED.R.CIV.P.

n10 Supplemental Rules B and C, FED.R.CIV.P.

Tradition has sanctified these forms and processes of civil
attachments, and they have not been subjected to much Fourth
Amendment scrutiny in either litigation or scholarly literature.
We need not review them generally now, however, for we find that
this particular seizure was reasonable in both the grounds
supporting [**9] it and the judicial supervision over the
decision to make it.

The libel of information filed by the United States Attorney
particularly described the items to be seized, and gave a
reasonably particular account of the respects in which they were
thought to contravene the Act. n11 Though the libel was not a
verified complaint, it has been been held that in admiralty
complaints signed by Government officers are attested to by the
officer's oath of office. n12 The libel was subject to scrutiny
by a United States District Judge, and it was only after his
review and by court order that the warrant issued. In these
circumstances, all requirements imposed by the Fourth Amendment
were complied with. n13

n11 The libel alleged that the "Hubbard Electrometers" were
accompanied as labeling by a list of named books and pamphlets,
which were alleged to claim that the E-meter could be used in the
cure or treatment of a list of named diseases, claims alleged to
be false and misleading.

n12 United States v. 935 Cases, etc., of Tomato Puree, 6 Cir.,
136 F.2d 523, 525, cert. denied, 320 U.S. 778, 64 S. Ct. 92,
88 L. Ed. 467 (1943).

[**10]

n13 Appellants also contend that the seizure was the fruit of an
illegal search in the form of a visit to the Scientology
headquarters four years previously by an FDA agent passing as a
member of the general public. There was no showing that the
previous visit bore any relationship to the seizure in this case,
and in any event inspections of premises open to the general
public are not illegal searches. Lewis v. United States, 385 U.S.
206, 87 S. Ct. 424, 17 L. Ed. 2d 312 (1966). Appellants also
contend that the seizure was carried out in an unreasonable
manner, but on examination of the record we find this contention
to be without merit.

[*1151] II

We turn then to the merits of the Government's case against the
instruments and literature subject to the decree of condemnation.
The Government has charged that the instruments seized, Hubbard
Electrometers or "E-meters," are "devices" as defined in the Act;
n14 that the literature seized constitutes "labeling" of the
device, in that it is "written, printed, or graphic matter * * *
accompanying" the device; n15 and that this "labeling" is false
[**11] or misleading. Because our reading of the Act in its
application to this case is influenced by appellants' claims to
the free exercise of their religion, some background concerning
their movement becomes necessary.

n14 "The term 'device' * * * means instruments, apparatus, and
contrivances, including their components, parts, and accessories,
intended (1) for use in the diagnosis, cure, mitigation,
treatment, or prevention of disease in man or other animals; or
(2) to affect the structure or any function of the body of man or
other animals."

21 U.S.C. 321(h).

n15 "The term 'labeling' means all labels and other written,
printed, or graphic matter (1) upon any article or any of its
containers or wrappers, or (2) accompanying such article."

21 U.S.C. 321(m).

A. Appellants in this case, claimants to the seized materials,
are individual and corporate adherents to the movement known as
Scientology. The movement apparently rests almost entirely upon
the writings of one man, L. Ron Hubbard, an American [**12] who
maintained the headquarters of the movement in England at the
time this action was brought. In the early 1950's, Hubbard wrote
tracts elucidating what he called "Dianetics." n16 Dianetics is a
theory of the mind which sets out many of the therapeutic
techniques now used by Scientologists, including techniques
attacked by the Government in this case as false healing.

n16 DIANETICS: THE EVOLUTION OF A SCIENCE (1958) (a work which
apparently appeared in ASTOUNDING SCIENCE FICTION magazine in
1950 -- see A BRIEF BIOGRAPHY OF L. RON HUBBARD 8 (author not
given, 1959); DIANETICS: THE MODERN SCIENCE OF MENTAL HEALTH
(1950); SCIENCE OF SURVIVAL: PREDICTION OF HUMAN BEHAVIOUR
(1951). In this and succeeding footnotes, where author is not
given, the author is L. Ron Hubbard.

The basic theory of Dianetics is that man possesses both a
reactive mind and an analytic mind. The analytic mind is a
superior computer, incapable of error, to which can be attributed
none of the human misjudgments which create social problems
[**13] and much individual suffering. These are traceable rather
to the reactive mind, which is made up of "engrams," or patterns
imprinted on the nervous system in moments of pain, stress or
unconsciousness. These imprinted patterns may be triggered by
stimuli associated with the original imprinting, and may then
produce unconscious or conditioned behavior which is harmful or
irrational. n17

n17 An exposition of the "fundamentals of Dianetics" of relative
clarity and brevity is to be found in the publisher's
introduction to SCIENCE OF SURVIVAL, supra Note 16, at i-viii.

Dianetics is not presented as a simple description of the mind,
but as a practical science which can cure many of the ills of
man. It terms the ordinary person, encumbered by the "engrams" of
his reactive mind, as a "preclear," by analogy to a computer from
which previously programmed instructions have not been erased.
The goal of Dianetics is to make persons "clear," thus freeing
the rational and infallible analytical mind. The benefits this
will [**14] bring are set out in considerable and alluring
detail. All mental disorders are said to be caused by "engrams,"
as are all psychosomatic disorders, and that concept is broadly
defined. n18

n18 DIANETICS: THE MODERN SCIENCE OF MENTAL HEALTH, supra Note
16, at 91-108.

A process of working toward "clear" is described as "auditing."
This process was explicitly characterized as "therapy" in
Hubbard's best-selling book DIANETICS: [*1152] THE MODERN SCIENCE
OF MENTAL HEALTH (1950). The process involves conversation with
an "auditor" who would lead the subject or "preclear" along his
"time track," discovering and exposing "engrams" along the way.
Though auditing is represented primarily as a method of improving
the spiritual condition of man, rather explicit benefits to
bodily health are promised as well. Hubbard has asserted that
arthritis, dermatitis, asthma, some coronary difficulties, eye
trouble, bursitis, ulcers and sinusitis are psychosomatic and can
be cured, and further that tuberculosis is "perpetuated [**15] by
engrams." n19

n19 Id. at 92-93. In a later work, Hubbard brought cancer within
the scope of treatment by "auditing." See SCIENTOLOGY: A HISTORY
OF MAN 21 (4th ed. 1961).

A few years after the appearance of Dianetics, Hubbard began to
set forth the broader theories of Scientology. Dianetics was
explicitly endorsed as part of Scientology, "that branch * * *
that covers Mental Anatomy." n20 Testimony by Scientology
adherents at the trial made clear that they continue to uphold
the theories of Dianetics, though they feel that there may have
been some errors in early formulations.

n20 See SCIENCE OF SURVIVAL, supra Note 16, at 1 n. 1 (apparently
a footnote inserted into a later printing of this preScientology
book).

With Scientology came much of the overlay which lends color to
the characterization of the movement as a religious [**16] one.
Hubbard has claimed kinship between his theories and those
espoused by Eastern religions, especially Hinduism and Buddhism.
n21 He argues that man is essentially a free and immortal spirit
(a "thetan" in Scientological terminology) n22 which merely
inhabits the "mest body" ("mest" is an acronym of the words
matter, energy, space, time). n23 Man is said to be characterized
by the qualities of "beingness," "havingness," and "doingness."
n24 The philosophical theory was developed that the world is
constructed on the relationships of "Affinity," "Reality" and
"Communication," which taken together are denominated "the ARC
Triangle." n25

n21 See, e.g., L. RON HUBBARD'S PAB'S, BOOK III 14-20 (1956).

n22 See SCIENTOLOGY: THE FUNDAMENTALS OF THOUGHT 32 (1956).

n23 See SCIENTOLOGY 8-8008 at 13-19 (3ded.1956).

n24 See SCIENTOLOGY: THE FUNDAMENTALS of THOUGHT, supra Note 22,
at 16.

n25 See SCIENTOLOGY 8-8008, supra Note 23, at 20-44.

On the more mundane level, early in [**17] the career of
Scientology Hubbard's followers -- at least those in the United
States -- began to constitute themselves into formal religious
bodies. The Founding Church of Scientology of Washington, D.C.,
one of the appellants, was incorporated in the District of
Columbia in 1955. A formal creed was promulgated and was made
part of the Articles of Incorporation. From the literature of the
movement in evidence at trial, it appears that the move toward
formal religious organization disturbed some adherents of
Scientology, who seem to have regarded it as an attempt to
provide a legal cloak for the movement's activities. But Hubbard
defended the church movement, disavowing mysticism or
supernaturalism, but pointing out the kinship of his ideas with
those of the Vedas and other Eastern religious doctrines. n26

n26 For Hubbard's account of this dispute, see L. RON HUBBARD'S
PAB'S, BOOK III, supra Note 21, at 14-20.

From the evidence developed at trial, it appears that a major
activity of the Founding Church [**18] and its affiliated
organizations in the District of Columbia is providing
"auditing," at substantial fees (at the time of trial $500 for a
25-hour course), to persons interested in Scientology. The
affiliated Academy of Scientology is engaged in training
auditors. Auditors are paid directly by the Church. There is no
membership in the Church as such; persons are accepted for
auditing on the basis of their interest in Scientology [*1153]
(and presumably their ability to pay for its benefits).

The Hubbard Electrometer, or E-meter, plays an essential, or at
least important, part in the process of auditing. The E-meter is
a skin galvanometer, similar to those used in giving lie detector
tests. The subject or "preclear" holds in his hands two tin soup
cans, which are linked to the electrical apparatus. A needle on
the apparatus registers changes in the electrical resistance of
the subject's skin. The auditor asks questions of the subject,
and the movement of the needle is apparently used as a check of
the emotional reaction to the questions. According to complex
rules and procedures set out in Scientology publications, the
auditor can interpret the movements of the needle after certain
[**19] prescribed questions are asked, and use them in diagnosing
the mental and spiritual condition of the subject. The E-meters
are sold for about $125, and are advertised in Scientology
publications available at the Distribution Center adjoining the
Church.

The Scientology movement in the District of Columbia also offers
the entire range of Scientology publications for sale. Over the
years this literature has grown into a formidable corpus.
Hubbard's two early books on Dianetics are sold, along with later
treatises developing Scientology. A large number of pamphlets and
tracts supplements the hardcover books. The movement has a
monthly magazine, ABILITY, which at the time of trial had
published over 100 numbers. In addition, "L. Ron Hubbard's
Professional Auditors' Bulletins," numbering at least 80 at the
time of trial, are collected and published in pamphlets. Much of
this literature is before the court as exhibits in evidence, and
a large proportion of it stands condemned by the District Court's
decree as "false or misleading labeling" of the E-meter. n27

n27 In an appendix to its decree the District Court listed the
works found to make false claims respecting the curative powers
of auditing and ordered them condemned along with the E-meter.
Since we conclude that the judgment of the court must be reversed
in toto, we do not reach appellants' claim that the Act does not
authorize condemnation of labeling, especially "labeling" which
takes the form of general literature.

[**20]

B. With this factual background in mind, we turn to the
litigation of this case in the District Court. The Government has
framed this as a typical Food, Drug and Cosmetic Act case,
involving a device whose accompanying promotional literature
makes claims to curative powers unsupported in fact. The
Government has culled from the vast literature of Scientology a
large number of statements which assert or imply that "engrams"
or the "reactive mind" cause various conditions, mostly those
normally considered mental or psychosomatic disorders, but also
including diseases or conditions which standard medical opinion
would regard as organic. Further statements have been found
asserting that auditing or processing, in clearing away the
"engrams," can cure or alleviate these conditions. And finally
statements have been introduced indicating that the E-meter is
essential to, or at least useful in, auditing or processing. On
this basis, the Government claims to have shown that the E-meter
is a "device" within the meaning of the Act, in that it is
"intended * * * for use in the diagnosis, cure, mitigation,
treatment, or prevention of disease * * *." 21 U.S.C. 321(h).

The Government put on [**21] a series of expert witnesses. First,
physicists and engineers testified concerning the E-meter itself.
They found it to be a crude skin galvanometer, of reasonably
craftsmanlike design and construction, though with certain
serious defects if meant to be used as a research tool for
meaningfully measuring electrical skin resistance.

Next, a series of doctors and medical researchers and a
psychiatrist testified that, within their expert knowledge, there
was no use for such an instrument in the diagnosis or treatment
of any disease or mental disorder. They were asked about the
specific diseases or conditions claimed in the Scientology
literature [*1154] to be susceptible of alleviation through
auditing, and unanimously agreed that none of these could be
treated or helped in any way through any known use of the E
meter. n28

n28 One Government witness, a psycho-physiologist and
neurophysiologist, did testify that there is a connection between
stimuli, including mental or emotional stimuli, and skin
resistance. He stated: "The good skin resistance devices have
been used as a research tool and only very occasionally as a
clinical tool to try to discover areas of emotional conflict
within an individual who is characterized by a neurotic ailment,
if that is the correct word to use here." However, the witness
did not consider the E-meter a "good skin resistance device"
because its needle reacted to such irrelevant factors as the
tightness with which the subject held the soup cans.

[**22]

In its legal arguments the Government has contended from the
outset that whether or not Scientology is a religion, and whether
or not auditing or processing is a practice of that religion, are
entirely irrelevant to the case. Religious beliefs, it is argued,
are entirely protected by the First Amendment, but action in the
name of religion is susceptible to legal regulation under the
same standards and to the same degree as it would be if entirely
secular in purpose.

Appellants have argued from the first that the entire case must
fall as an unconstitutional religious persecution. In their view,
auditing or processing is a central practice of their religion,
akin to confession in the Catholic Church, and hence entirely
exempt from regulation or prohibition. They have made no attempt
to contradict the expert testimony introduced by the Government.
They have conceded that the E-meter is of no use in the diagnosis
or treatment of disease as such, and have argued that it was
never put forward as having such use. Auditing or processing, in
their view, treats the spirit of man, not his body, though
through the healing of the spirit the body can be affected. They
have culled from their literature [**23] numerous statements
disclaiming any intent to treat disease and recommending that
Scientology practitioners send those under their care to doctors
when organic defects may be found. They have introduced through
testimony a document which they assert all those who undergo
auditing or processing must sign which states that Scientology is
"a spiritual and religious guide intended to make persons more
aware of themselves as spiritual beings, and not treating or
diagnosing human ailments of body or mind, and not engaged in the
teaching of medical arts or sciences * * *."

Finally, with respect to their claim to be a religion and hence
within the protection of the First Amendment, they have shown
that the Founding Church of Scientology is incorporated as a
church in the District of Columbia, and that its ministers are
qualified to perform marriages and burials. They have introduced
their Creed into evidence. The Government has made no claim that
the Founding Church is not a bona fide religion, that auditing is
not part of the exercise of that religion, or that the theory of
auditing is not a doctrine of that religion.

C. Thus both parties have viewed the religious issue as a simple
[**24] one. In the Government's view, religion is simply
irrelevant -- appellants have engaged in "action" and hence
stripped themselves of any First Amendment protection. In
appellants' view, religion is dispositive -- auditing is part of
the practice of their faith and hence the free exercise clause
protects it from all secular regulation. In our view, the
religious issue is more complex than either of the parties has
maintained.

First, it is clear that the First Amendment does not protect from
regulation or prohibition all bona fide religious practices. As
the Supreme Court has stated:

"* * * [The First Amendment] embraces two concepts, -- freedom to
believe and freedom to act. The first is absolute but, in the
nature of things, the second cannot be. Conduct remains [*1155]
subject to regulation for the protection of society. * * *"

Cantwell v. Connecticut, 310 U.S. 296, 303-304, 60 S. Ct. 900,
903, 84 L. Ed. 1213 (1940). (Footnote omitted.) Thus the
prohibition of plural marriage has been upheld, even though the
practice is a religious duty to some. n29 Similarly, parading
without a license n30 and the sale by children of religious
literature n31 have been [**25] prohibited, even though practiced
as tenets of religious faith.

n29 Davis v. Beason, 133 U.S. 333, 10 S. Ct. 299, 33 L. Ed. 637
(1890); Reynolds v. United States, 98 U.S. (8 Otto) 145, 25 L.
Ed. 244 (1878).

n30 Cox v. New Hampshire, 312 U.S. 569, 61 S. Ct. 762, 85 L. Ed.
1049 (1941).

n31 Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 64 S.
Ct. 438, 88 L. Ed. 645 (1944).

On the other hand, legal restrictions cannot be applied to
religious practices, as they can in much of the secular realm,
merely on a showing of a rational relationship between the
regulation imposed and the legitimate end sought. In Cantwell,
supra, 310 U.S. at 304, 60 S. Ct. at 903, the Court stated that
"the power to regulate must be so exercised as not, in attaining
a permissible end, unduly to infringe the protected freedom."
(Emphasis added.) And in West Virginia State Board of Education
v. Barnette, 319 U.S. 624, 639, 63 S. Ct. 1178, 1186, 87 L. Ed.
1628 (1943), the Court spoke more elaborately and more forcefully
[**26] to the same issue:

"* * * The right of a State to regulate, for example, a public
utility may well include, so far as the due process test is
concerned, power to impose all of the restrictions which a
legislature may have a 'rational basis' for adopting. But
freedoms of speech and of press, of assembly, and of worship may
not be infringed on such slender grounds. They are susceptible of
restriction only to prevent grave and immediate danger to
interests which the State may lawfully protect. * *"

Similarly in Sherbert v. Verner, 374 U.S. 398, 406, 83 S. Ct.
1790, 1795, 10 L. Ed. 2d 965 (1963), the Court held that "'only
the gravest abuses, endangering paramount interests, give
occasion for permissible limitation'" of religious practices. In
that case, the Court held that denial of unemployment benefits to
those who would not work on Saturday, though permissible as a
general rule, could not be applied to one whose refusal to work
was based on religious objections.

The principles enunciated in Cantwell, Barnette and Sherbert at
least raise a constitutional doubt concerning the condemnation of
instruments and literature apparently central to the practice of
religion. [**27] That doubt becomes more serious when we turn to
the decision of the Supreme Court in United States v. Ballard,
322 U.S. 78, 64 S. Ct. 882, 88 L. Ed. 1148 (1944).

Ballard involved an eccentric religion known as the "I Am"
movement. The promoters of this religion, members of the Ballard
family, claimed to have been appointed by one "Saint Germain" as
"divine messengers," and to have been given the power to cure all
diseases. By virtue of these claims, they obtained money from
members of the public. They were tried for mail fraud. The trial
judge excluded from consideration by the jury the issue of the
truth or falsity of their claims to divine designation and
miraculous powers, and the case was submitted on the sole issue
of whether they made those claims in good faith. They were
convicted, and on review the Court of Appeals ruled that
exclusion of the issue of truth or falsity was improper. Ballard
v. United States, 9 Cir., 138 F.2d 540 (1943).

The Supreme Court reversed the Court of Appeals, holding that the
First Amendment prohibited trial of the truth or falsity of
religious beliefs:

"* * * Freedom of thought, which includes freedom of religious
belief, [*1156] [**28] is basic in a society of free men. * * *
It embraces the right to maintain theories of life and of death
and of the hereafter which are rank heresy to followers of the
orthodox faiths. Heresy trials are foreign to our Constitution.
Men may believe what they cannot prove. They may not be put to
the proof of their religious doctrines or beliefs. * * * Many
take their gospel from the New Testament. But it would hardly be
supposed that they could be tried before a jury charged with the
duty of determining whether those teachings contained false
representations. * * * The religious views espoused by
respondents might seem incredible, if not preposterous, to most
people. But if those doctrines are subject to trial before a jury
charged with finding their truth or falsity, then the same can be
done with the religious beliefs of any sect. When the triers of
fact undertake that task, they enter a forbidden domain. * * *"

322 U.S. at 86-87, 64 S. Ct. at 886.

The Ballard case does not hold merely that religious belief is
protected. The Ballards engaged in action; they solicited money
from their faithful. Rather the holding of the case seems to be
that regulation of religious action [**29] which involves testing
in court the truth or falsity of religious belief is barred by
the First Amendment.

The relevance of Ballard to the case before us is obvious. n32
Here the E-meter has been condemned, not because it is itself
harmful, but because the representations made concerning it are
"false or misleading." And the largest part of those
representations is contained in the literature of Scientology
describing the process of auditing which appellants have claimed,
without contest from the Government, is part of the doctrine of
their religion and central to its exercise. Thus if their claims
to religious status are accepted, a finding that the seized
literature misrepresents the benefits from auditing is a finding
that their religious doctrines are false. To construe the Food,
Drug and Cosmetic Act to permit [*1157] such a finding would, in
the light of Ballard, present the gravest constitutional
difficulties.

n32 We do not perceive any meaningful distinction in the fact
that this is a civil in rem action whereas Ballard was a criminal
prosecution. In the first place the Supreme Court has long
recognized that in rem forfeiture actions are penal in nature and
subject to many of the same restrictions placed upon
prosecutions. One 1958 Plymouth Sedan v. Pennsylvania, supra Note
7; Boyd v. United States, supra Note 7. The action taken against
appellants here is more than merely remedial; it is punitive. The
devices condemned here cannot properly be considered contraband
per se. See One 1958 Plymouth Sedan, supra, 380 U.S. at 699, 85
S. Ct. 1246, 14 L. Ed. 2d 170. They are not in themselves
harmful, as are adulterated foods and drugs or miswired
electrical devices. Their only alleged illegal attribute is the
supposedly false claims made concerning their powers.

Second, we do not perceive the constitutional defect found in
Ballard to have been the prosecution of individuals for
promulgating false religion. That defect was rather the
litigation of the truth or falsity of religious doctrines. See
322 U.S. at 87, 64 S. Ct. at 887:

"* * * But if those doctrines are subject to trial before a jury
charged with finding their truth or falsity, then the same can be
done with the religious beliefs of any sect. When the triers of
fact undertake that task, they enter a forbidden domain. * * *"
(Emphasis added.)

Thus under Ballard it seems unlikely that a disgruntled former
adherent could sue a church for fraud and deceit because it had
collected money from him on the basis of allegedly "false"
doctrines concerning salvation, heaven and hell -- or for that
matter on the basis of doctrines, such as those of the Christian
Scientists, concerning the cause and cure of disease.

Indeed, the Supreme Court has recently unanimously held that
courts cannot settle a civil property dispute between church
bodies where the dispute turns on the orthodoxy of the religious
doctrines espoused by the parties. Presbyterian Church in the
United States v. Mary Elizabeth Blue Hull Memorial Presbyterian
Church, 393 U.S. 440, 89 S. Ct. 601, 21 L. Ed. 2d 658 (1969).

[**30]

D. It is with these constitutional considerations in mind that we
turn to our examination of the application of the statute to the
facts of this case. Appellants have argued that much of the
Scientology literature from which claims concerning the curative
powers of auditing was culled by a Government witness is not
"labeling" of the E-meter within the meaning of the Act, since it
is part of the religious doctrine of their church.

For purposes of the Act, "the term 'labeling' means all labels
and other written, printed, or graphic matter (1) upon any
article or any of its containers or wrappers, or (2) accompanying
such article." n33 Most of the litigation over this definition
has turned upon the question of when written matter may be said
to "accompany" an article. In this case the Government has
contended that Scientology literature on sale in the Distribution
Center, which adjoins the Hubbard Guidance Center where E-meters
were used in auditing, "accompanied" the E-meters.

n33 21 U.S.C. 321(m).

The [**31] courts have construed the word "accompanying" to give
broad remedial effect to the purposes of the Act. In Kordel v.
United States, 335 U.S. 345, 69 S. Ct. 106, 93 L. Ed. 52 (1948),
the Supreme Court ruled that, in order to be considered
"labeling" of a drug, promotional pamphlets need not be shipped
together with the drug. It held that:

"One article or thing is accompanied by another when it
supplements or explains it, in the manner that a committee report
of the Congress accompanies a bill. No physical attachment one to
the other is necessary. * * *

"The false and misleading literature in the present case was
designed for use in the distribution and sale of the drug, and it
was so used. * * *"

335 U.S. at 350, 69 S. Ct. at 109. Nor did the fact that the
pamphlets were sold save them from being "labeling" in the
context of that case:

"* * * The booklets and drugs were nonetheless interdependent;
they were parts of an integrated distribution program. The Act
cannot be circumvented by the easy device of a 'sale' of the
advertising matter where the advertising performs the function of
labeling."

Ibid.

Kordel thus laid down the broad lines for [**32] determining
whether literature "accompanies" a drug or device; to do so it
need not be shipped together with the device, but it must be
"designed for use in the distribution and sale of" the device,
and the two must be "parts of an integrated distribution
program."

Subsequent cases in the lower courts have helped sketch in the
rough outlines drawn by Kordel. In the Molasses n34 case, a best
selling book extolling the curative powers of blackstrap
molasses, though mentioning no brand names, was used by health
food retailers in a promotional scheme. A copy of the book was
placed in the window of the store next to a display of their
brand of molasses. Prospective purchasers of molasses inside the
store were handed copies of the book and referred to passages in
it which made the misleading claims about the product. The
particular copies of the book used in this scheme were found by
the District Court to "accompany" the molasses. n35

n34 United States v. 8 Cartons, etc., Molasses, W.D.N.Y., 103 F.
Supp. 626 (1951).

n35 For a similar case, involving the book ABOUT HONEY, see
United States v. 250 Jars, etc., of U.S. Fancy Pure Honey,
E.D.Mich., 218 F. Supp. 208 (1963), affirmed, 6 Cir., 344 F.2d
288 (1965).

[**33]

On the other hand, in the Balanced Foods n36 case, general
literature which falsely claimed healthful properties for a food
was found by the Second Circuit not [*1158] to "accompany" it.
The facts of that case are interesting. The best-sellers FOLK
MEDICINE and ARTHRITIS AND FOLK MEDICINE prescribed a mixture of
vinegar and honey for a wide variety of maladies. After FOLK
MEDICINE achieved success, a health food manufacturer bottled a
preparation of this mixture for sale. The manufacturer also
purchased copies of the book and distributed them after special
promotional efforts to the same health food outlets which sold
the mixture. There was evidence that the retail stores displayed
the mixture and copies of the book a few feet apart. On these
facts, the court reversed a judgment that the book constituted
"false labeling" of the food. The court distinguished Kordel on
the ground that the drug and pamphlet in that case had been
mailed in "integrated transactions," and that the vendors had
given away copies of the pamphlets with sales of the drugs in
some instances. n37

n36 United States v. 24 Bottles "Sterling Vinegar & Honey, etc.",
2 Cir., 338 F.2d 157 (1964).

[**34]

n37 In another case the Second Circuit has found general
literature (in this case articles in medical journals) to be
"labeling" because it was used in a promotional scheme with a
device. United States v. Diapulse Manufacturing Corp. of America,
2 Cir., 389 F.2d 612, cert. denied, 392 U.S. 907, 88 S. Ct. 2059,
20 L. Ed. 2d 1365 (1968).

The facts of the case before us differ materially from those in
the cases just reviewed. The alleged "labeling" here is not a
single readily digestible book, or a collection of pamphlets
obviously promotional in nature, but rather a vast array of the
often obscure literature of Scientology. This literature was,
according to the evidence at trial, all offered for sale at the
Distribution Center, Inc., a corporation affiliated with the
Founding Church, which had its book store next to the Guidance
Center at which Scientology auditing services were provided.

A small proportion of this literature deals directly with the E
meter itself. Two books, apparently intended for Scientology
auditors rather than the general public, describe the nature and
workings of the [**35] E-meter, and at the same time give some
guidance as to its use in the auditing process. n38 Within these
books can be found statements to the effect that the E-meter is
an essential aid to proper auditing. However, these works contain
very little of what the Government contends is false and
misleading in the labeling of the E-meter. Though there are
claims concerning the scientific properties of the E-meter which
are open to question, n39 the Government placed little reliance
upon these in presenting its case to the jury.

n38 J. SANBORN, THE HUBBARD ELECTROMETER (1959); L. R. HUBBARD, E
METER ESSENTIALS 1961.

n39 For instance, in E METER ESSENTIALS 1961, supra Note 38, at
18, Hubbard claims that "the meter will also read Basal
Metabolism." The Government included this claim among its
allegations of false labeling in the libel. However, the great
bulk of the allegations charges that false or misleading
statements were made, not about the E-meter itself, but about the
process of auditing in which it is used.

[**36]

Among the literature of Scientology before the court there are
found a few advertisements, apparently directed at the general
public, which make direct appeals for customers (or converts, if
the appellants' version is to be accepted). These advertisements
are found in copies of the monthly Scientology magazine ABILITY.
Their representations concerning the auditing process appear to
be general come-ons, designed to bring in the curious or the
gullible. n40

n40 See, e.g., ABILITY, No. 58, at 5:

"Plagued by illness? We'll make you able to have good health. Get
processed by the finest capable auditors in the world today.
Every auditor a D.D. One-week intensive. Three-week intensive.
Weekend group intensives. Personally coached and monitored by L.
Ron Hubbard, Founder. Come to Registrar, 1812-19th Street, N.W.,
Washington 9, D.C."

By far the greatest bulk of the material alleged to be "false
labeling" of the E-meter consists of the general literature of
Scientology, which presents in an integrated [*1159] [**37]
manner the theory sketched earlier concerning the human mind, the
sources of various sorts of unhappiness, personality disorder and
psychosomatic complaints, and the way in which the process of
auditing can alleviate these ills. Within this literature is to
be found only the most occasional passing reference to the E
meter; more often than not, the meter is not even mentioned in
these general works. Among these are the introductory works
describing Scientology, and it is presumably these works, if any,
which are pressed upon curious members of the public in any
effort which might be made to promote the sale of Scientology
services.

It is within this general literature that the Government has
found the passages which, in isolation, stand out most
dramatically as fraudulent healing claims. For instance, in
perhaps the most obscure and impenetrable of the books, Hubbard's
SCIENTOLOGY: A HISTORY OF MAN (4th ed. 1961), occurs the damaging
sentence: "Cancer has been eradicated by auditing out conception
and mitosis." n41 In short, it is upon this mass of literature
that the Government largely depended in showing, to the
satisfaction of the jury, that the Scientology movement had made
false [**38] claims concerning the curative powers of its
auditing techniques.

n41 At page 21.

These, however, are the books which set forth the doctrines of
Scientology. If that movement is a religion, as appellants here
have claimed, and as the Government has not denied, these books
are its scriptures. The statements concerning the powers of
auditing over the ills of mind and body are not readily separable
from general statements of Scientological doctrines concerning
the nature of man and the relationship of his mind to his body.
Many will find these doctrines, those which relate to health as
well as those which do not, absurd or incoherent. But the Ballard
case makes suspect the legal inquisition of such doctrines where
they are held as religious tenets.

Were the literature here introduced clearly secular, we might
well conclude that under existing law it constituted "labeling"
for purposes of the Act. Such a conclusion might be justified by
a broad reading of the statute, consistent with its high purpose
of protecting [**39] the public health and pocketbook against
health frauds. However, such broad readings are not favored when
they impinge upon constitutionally sensitive areas, especially in
the absence of a showing of legislative intent to regulate these
areas. Nothing in the history or interpretation of the Act
indicates that it was meant to deal with the special problem of
religious healing, a problem often given legislative treatment
separate from that imposed upon the general area of public health
and medical practice. n42 In light of these considerations,
highlighted by the explicit holding of Ballard, n43 we [*1160]
interpret the Act as not including within its concept of
"labeling" the literature developing the doctrines of a religion.

n42 2 D.C.CODE 134(d) (1967) exempts from the operation of the
medical licensing laws "persons treating human ailments by prayer
or spiritual means, as an exercise or enjoyment of religious
freedom * * *." According to Cawley, Criminal Liability in Faith
Healing, 39 MINN.L.REV. 48, 64 (1954), "Most, if not all, * * *
states * * * except from the licensing requirements those persons
who endeavor to treat human ailments by prayer or spiritual means
exclusively." It has been argued that the Constitution requires
such exceptions to medical licensing laws. People v. Cole, 219
N.Y. 98, 111, 113 N.E. 790, 795, L.R.A.1917C, 816 (1916)
(concurring opinion of Chief Judge Bartlett). Official and
unofficial exemptions from various health regulations have
protected Christian Scientists in the exercise of their religion.
See Schneider, Christian Science and the Law: Room for
Compromise?, 1 COLUM.J.LAW & SOC. PROB. 81 (1965).

[**40]

n43 The Ballards made claims to miraculous healing powers and
collected money on the basis of these claims. The truth or
falsity of their claims was held not subject to evaluation in a
prosecution for mail fraud. They marketed no "device" in
connection with their claims, but it is difficult confidently to
conclude that had they, and had their practices been attacked
under food and drug laws rather than the mail fraud statute, the
truth of their claims would have been any more a fit subject for
litigation.

E. Finally, we come to the vexing question: is Scientology a
religion? On the record as a whole, we find that appellants have
made out a prima facie case that the Founding Church of
Scientology is a religion. It is incorporated as such in the
District of Columbia. It has ministers, who are licensed as such,
with legal authority to marry and to bury. Its fundamental
writings contain a general account of man and his nature
comparable in scope, if not in content, to those of some
recognized religions. n44 The fact that it postulates no deity in
the conventional sense does not preclude its [**41] status as a
religion. n45

n44 See text accompanying Notes 21-26, supra.

n45 See United States v. Seeger, 380 U.S. 163, 85 S. Ct. 850, 13
L. Ed. 2d 733 (1965); Washington Ethical Society v. District of
Columbia, 101 U.S.App.D.C. 371, 249 F.2d 127 (1957).

The Government might have chosen to contest the claim that the
Founding Church was in fact a religion. Not every enterprise
cloaking itself in the name of religion can claim the
constitutional protection conferred by that status. It might be
possible to show that a self-proclaimed religion was merely a
commercial enterprise, without the underlying theories of man's
nature or his place in the Universe which characterize recognized
religions. Though litigation of the question whether a given
group or set of beliefs is or is not religious is a delicate
business, n46 our legal system sometimes requires it so that
secular enterprises may not unjustly enjoy the immunities granted
to the sacred. When tax exemptions are granted to churches,
litigation [**42] concerning what is or is not a church will
follow. n47 When exemption from military service is granted to
those who object on religious grounds, there is similar
litigation. n48 When otherwise proscribed substances are
permitted to be used for purposes of worship, worship must be
defined. n49 The law has provided doctrines and definitions,
unsatisfactory as they may be, to deal with such disputes. n50
Since the Government chose not to contest appellants' claim to
religious status, and since in our view appellants have made a
prima facie case for such status, we conclude that for purposes
of review of the judgment before us they are entitled to the
protection of the free exercise clause. n51

n46 Cf. United States v. Ballard, 322 U.S. 78, 92, 64 S. Ct. 882,
88 L. Ed. 1148 (1944) (dissenting opinion of Mr. Justice
Jackson).

n47 Washington Ethical Society v. District of Columbia, supra
Note 45; and see particularly, for perhaps the fullest discussion
of the meaning of religion for tax exemption purposes, Fellowship
of Humanity v. County of Alameda, 153 Cal.App.2d 673, 315 P.2d
394 (1957).

[**43]

n48 United States v. Seeger, supra Note 45; United States v.
Kauten, 2 Cir., 133 F.2d 703 (1943).

n49 People v. Woody, 61 Cal.2d 716, 40 Cal.Rptr. 69, 394 P.2d 813
(1964); In re Grady, 61 Cal.2d 887, 39 Cal.Rptr. 912, 394 P.2d
728 (1964).

n50 For thoughtful efforts at "defining" religion in the context
of litigation, see United States v. Seeger, supra Note 45 (with
concurring opinion of Mr. Justice Douglas, 380 U.S. at 188, 85 S.
Ct. 850, 13 L. Ed. 2d 733), and Fellowship of Humanity v. County
of Alameda, supra Note 47. Further on the question see Comment,
Defining Religion: Of God, the Constitution and the D.A.R., 32
U.CHI.L.REV. 533 (1965); Boyan, Defining Religion in Operational
and Institutional Terms, 116 U.PA.L.REV. 479 (1968). For
recognition that the bona fides of religious professions may
properly be litigated, see United States v. Seeger, supra Note
45, 380 U.S. at 185, 85 S. Ct. 850, 13 L. Ed. 2d 733; In re
Grady, supra Note 49; People v. Cole, supra Note 42, 113 N.E. at
794.

n51 The Founding Church of Scientology has sued the United States
in the Court of Claims for recovery of income taxes paid upon
denial of an exemption to the Church under 26 U.S.C. 501(c),
Internal Revenue Code of 1954, which exempts a corporation
"organized and operated exclusively for religious * * * or
educational purposes, * * * no part of the net earnings of which
inures to the benefit of any private shareholder or individual *
* *." A Commissioner of the Court of Claims has filed an opinion,
including findings of fact and recommended conclusion of law,
recommending that the court uphold the denial of the exemption
(No. 226-61, filed August 7, 1968). The Commissioner found that a
large part of the activities of the Founding Church was profit
making in nature, and that some of its net earnings inured to the
benefit of L. Ron Hubbard.

[**44]

[*1161] Appellants have contended that their theories concerning
auditing are part of their religious doctrine. We have delineated
in detail the evidence on which this claim is based. Again the
Government has not contested this claim; it has not tried to
argue or prove, for instance, that even if Scientology as
practiced here is a religion, auditing services have been peddled
to the general public on the basis of wholly non-religious pseudo
scientific representations. n52 We cannot assume as a matter of
law that all theories describing curative tecniques or powers are
medical and therefore not religious. Established religions claim
for their practices the power to treat or prevent disease, or
include within their hagiologies accounts of miraculous cures.
n53 In the circumstances of this case we must conclude that the
literature setting forth the theory of auditing, including the
claims for curative efficacy contained therein, is religious
doctrine of Scientology and hence as a matter of law is not
"labeling" for the purposes of the Act.

n52 As one thoughtful commentator has noted: "We can only know
that a claim is based on religion when we are told that it is.
The legal basis for stating that a claim is in the religious
domain can be that it is held out as being religious in nature."

And further:

"* * * If a man simply sells bad drugs and defends on religious
grounds, we can find his defense insufficient. For we say: first,
you failed to define your claims as religious and they were
claims of a nature that would not ordinarily be understood as
religious; second, holding yourself out as a drug salesman
implied that you spoke with medical authority. * * *"

Weiss, Privilege, Posture and Protection: "Religion" in the Law,
73 YALE L.J. 593, 604, 605 (1964).

The distinction between a healer who represents his cure from the
first as religious, and one who represents it as medical or
scientific but then defends on the basis of religion, is well
marked by two New York cases, People v. Cole, supra Note 42
(Christian Science practitioner who cured only by prayer exempt
from medical licensing statute), and People v. Vogelgesang, 221
N.Y. 290, 116 N.E. 977 (1917) (Cardozo, J.) ("faith healer" who
advertised self as "specialist in all forms of chronic diseases"
and who prescribed drugs not exempt).

In this opinion, of course, we imply no view as to whether the
District of Columbia medical licensing statute, 2 D.C.CODE 120,
134 (1967), is applicable to appellants' activities.

[**45]

n53 See, e.g., Schneider, op. cit. supra Note 42.

This case was tried before a jury on two charges: that the E
meter was misbranded in that its "labeling" made false or
misleading claims concerning the process of auditing in which it
was used, and that the E-meter was not accompanied by adequate
instructions for its use. The jury returned a general verdict for
the Government. During the course of the trial, in an effort to
prove the first of these two charges, the Government put into
evidence some thousands of pages of Scientology literature, all
of which the jury was invited to consider on the issue of
misbranding. Through a Government witness, the jury's attention
was directed to passages in this literature describing the
theories of Scientology as they relate to auditing and claiming
curative powers for that process. We have found that, under
Ballard, these theories are not properly subject to courtroom
evaluation as to truth or falsity. Since the jury's general
verdict may have rested in whole or in part on a finding that
this literature was false [*1162] or misleading labeling [**46]
of the E-meter, that verdict must be set aside.

III

Since our road to this conclusion has been long and complex, we
think it appropriate to summarize what we have and what we have
not held. We have held the following:

(1) On the basis of the record before us, the Founding Church of
Scientology has made out a prima facie case that it is a bona
fide religion and, since no rebuttal has been offered, it must be
regarded as a religion for purposes of this case.

(2) On the record before us, a prima facie case exists that
auditing is a practice of Scientology, and that accounts of
auditing integrated into the general theory of Scientology are
religious doctrines. Since no rebuttal has been offered, we must
take the point as proven.

(3) In view of the constitutional doctrine of United States v.
Ballard, supra, literature setting forth religious doctrines, and
related to an instrument in the manner in which the "auditing"
literature here is related to the E-meter, cannot be subjected to
courtroom evaluation and therefore cannot be considered
"labeling" of such an instrument for purposes of the "false or
misleading labeling" provisions of the Act.

On the other hand, [**47] the following should be noted:

(1) We do not hold that the Founding Church is for all legal
purposes a religion. Any prima facie case made out for religious
status is subject to contradiction by a showing that the beliefs
asserted to be religious are not held in good faith by those
asserting them, and that forms of religious organization were
erected for the sole purpose of cloaking a secular enterprise
with the legal protections of religion.

(2) We do not hold that, even if Scientology is a religion, all
literature published by it is religious doctrine immune from the
Act.

(3) We do not hold that public health laws in general, or the
Food, Drug and Cosmetic Act in particular, have no application to
the activities of religion. For instance, it may well be that
adulterated foods, drugs or devices used in religious practices
can be condemned under the Act. n54 It may be that a drug or
device used in religion is subject to condemnation as
"misbranded" if its labeling is found to lack, for instance,
adequate directions for use, as was charged in this case. n55 Our
holding prevents only a finding of false labeling on the basis of
doctrinal religious literature.

(4) Finally, [**48] we make no holding concerning the power of
Congress to deal generally with the making of false claims by
religions deemed injurious to the public health or welfare. The
Ballard case of course casts doubt on some aspects of such a
power; but this opinion makes only a narrowing construction, in a
constitutionally sensitive area, of a statute which has otherwise
quite properly been construed broadly by the courts.

n54 See 21 U.S.C. 331(a), 334(a), 341, 351.

n55 See 21 U.S.C. 352(f) (1).

Reversed.

[*1164contd]

[EDITOR'S NOTE: The page numbers of this document may appear to
be out of sequence; however, this pagination accurately reflects
the pagination of the original published documents.]

On Appellee's Petition for Rehearing

PER CURIAM:

From the Government's petition for rehearing in this case, it
appears that the following clarifying observations are in order.

I

The Government has correctly inferred from our opinion that a
showing that "auditing services [**49] have been peddled to the
general public on the basis of wholly non-religious
pseudoscientific representations" would support a verdict of
false labeling. 133 U.S.App.D.C. 229 409 F.2d at 1161. We gave as
further explication of this view a [*1164] passage from Weiss,
Privilege, Posture and Protection: "Religion" in the Law, 73 YALE
L.J. 593, 604, 605 (1964), and citations to two instructive New
York cases, People v. Cole, 219 N.Y. 98, 113 N.E. 790,
L.R.A.1917C, 816 (1916), and People v. Vogelgesang, 221 N.Y. 290,
116 N.E. 977 (1917). Our basic point is that, in order to raise a
religious defense to a charge of false statement (here
misbranding), the person charged with the alleged
misrepresentation must have explicitly held himself out as making
religious, as opposed to medical, scientific or otherwise
secular, claims.

The Government now argues that there was sufficient evidence in
the record to permit the jury to find false labeling on the basis
of "wholly non-religious pseudo-scientific representations." In
the thousands of pages of Scientology literature introduced at
trial, it finds passages which appear to be based on secular
rather than religious claims, such as the [**50] claim that
Scientology is "a precise and exact science, designed for an age
of exact sciences," and that "no other subject on earth except
physics and chemistry has had such grueling testing (proofs,
exact findings)." n1

n1 In our main opinion, we have already noted that some claims
made on behalf of the E-meter and the auditing process, and
introduced into evidence at trial, had no discernible relation to
whatever religious content Scientology might have. See 133
U.S.App.D.C. 229 409 F.2d at 1158, n. 39 and n. 40.

This argument misconceives the ground upon which we reversed. We
did not find insufficient competent evidence to support a
verdict, nor did we find that all literature submitted to the
jury as "false labeling" was religious doctrine. Rather we found
that some of that literature was at least prima facie religious
doctrine, and that the jury, as it was instructed, n2 could have
found against the E-meter by finding false statements in
"labeling" which was at the same time religious doctrine. [**51]
See main opinion, 133 U.S.App.D.C. 229 409 F.2d at 1161. And, of
course, where a jury's general verdict may have rested upon
grounds improper for First Amendment reasons, a reviewing court
will not pause to speculate whether the jury's verdict was
actually reached on other, and permissible, grounds. Stromberg v.
California, 283 U.S. 359, 367-368, 51 S. Ct. 532, 75 L. Ed. 1117
(1931); Gregory v. City of Chicago, 394 U.S. 111, 89 S. Ct. 946,
22 L. Ed. 2d 134 (1969).

n2 A tremendous volume of Scientology literature was submitted to
the jury, and the jury was charged that if the literature
"accompanied" the E-meter in the sense described in the main
opinion, 133 U.S.App.D.C. 229 409 F.2d at 1157 it was labeling.
Thus there was neither a winnowing out by the judge of the
religious material, nor an instruction to the jury that it could
not find such material to be false labeling.

It is true that no such sifting process and no such instruction
was requested by appellants. Appellants framed their First
Amendment point in more broadside fashion as described in the
main opinion, 133 U.S.App.D.C. 229 409 F.2d at 1154. However,
even though the narrower Ballard point was never raised in the
form of objections to evidence or suggested jury instructions, we
regard it as subsumed in the broader free exercise objections
actually made. In any case, a denial of First Amendment rights is
one of those exceptional instances where an appellate court will
notice error in the charge even where no objection is made at
trial. 5 J. MOORE, FEDERAL PRACTICE para. 51.04 (2d ed. 1968);
Shokuwan Shimabukuro v. Higeyoshi Nagayama, 78 U.S.App.D.C. 271,
273, 140 F.2d 13, 15, cert. denied, 322 U.S. 755, 64 S. Ct. 1270,
88 L. Ed. 1584 (1944).

[**52]

II

In its petition, the Government finds unclarity in our failure to
state whether or not a second trial may follow in this case. Of
course, it is not within our power authoritatively to declare the
res judicata effect of our own decision. However, since the basis
of our reversal was that the case was improperly framed, rather
than that the Scientologists' devices and literature were
absolutely protected, [*1165] or that the evidence was
insufficient, it would appear that a new trial would be in order.

If a new trial does follow, a further observation may be helpful.
We have held that as a matter of statutory construction compelled
by the constitutional doctrine of United States v. Ballard, 322
U.S. 78, 64 S. Ct. 882, 88 L. Ed. 1148 (1944), religious claims
cannot be found "false labeling" within the meaning of the Food,
Drug and Cosmetic Act. Thus it is incumbent on the trial judge to
rule in the first instance whether each item of alleged false
labeling makes religious claims and hence cannot be submitted to
the jury for the factual determinations of whether it is a label
for the device in question and whether it is false. n3 See
Jacobellis v. Ohio, 378 U.S. 184, [**53] 187-188, 84 S. Ct. 1676,
12 L. Ed. 2d 793 (1964).

n3 With respect to this item-by-item determination, the inquiry
should be whether that item puts forward its allegedly false
claims respecting the E-meter or auditing on a "wholly non
religious" basis. Of course, this does not preclude a finding
that an item (book, pamphlet, advertising flier) makes out a self
sufficient non-religious claim for Scientology services, to which
a religious appeal has been merely tacked on.

Finally, it should be noted that the Government up to this time,
including its motion for rehearing, has not challenged the bona
fides of appellants' claim of religion. In the event of any new
trial, as indicated in the panel opinion, it would be open to the
Government to make this challenge. If the challenge is made
successfully, the First Amendment question would, of course,
disappear from this case. See United States v. Kuch, D. D.C., 288
F. Supp. 439 (1968).

Circuit Judge McGOWAN does not join in this clarification of the
majority [**54] opinion, and continues to adhere to his
dissenting opinion.

DISSENTBY: McGOWAN

DISSENT: [*1162contd]

[EDITOR'S NOTE: The page numbers of this document may appear to
be out of sequence; however, this pagination accurately reflects
the pagination of the original published documents.]

McGOWAN, Circuit Judge (dissenting):

At the trial in the District Court, the Government put in
evidence from which, in my view, a jury would be warranted in
finding that (1) the practice of the asserted religion of
Scientology involved the use of a mechanical device in
association with certain publications which represented the
device to have utility in the prevention, relief, or cure of
physical illnesses such as cancer, and (2) the device in fact had
no such capacity. The majority, as I understand it, holds that,
because the Government did not go further and prove that
Scientology was not a bona fide religion, the First Amendments,
as interpreted in United States v. Ballard, 322 U.S. 78, 64 S.
Ct. 882, 88 L. Ed. 1148 (1944), bars any judicial inquiry
whatsoever into whether the device had the healing powers claimed
for it. Absent such a determination, the [*1163] majority
logically [**55] concludes that a judgment that the device is
misbranded can not be upheld.

This proceeding did not involve an inquisition into the validity
of any personal religious beliefs, or the infliction of a
punishment upon any person for holding or disseminating such
beliefs. It was a proceeding against property under a
Congressional statute aimed at protecting the unsophisticated
against not only wasting their money but, more importantly,
endangering their lives by relying upon misbranded machines.
There is, as the majority points out, a well-recognized
distinction between the good faith holding of a religious belief,
however bizarre, and unlimited freedom to implement that belief
by conduct. I do not believe that the Government was required, at
least in a statutory in rem proceeding of the kind here involved,
to show that, over and above the misbranding of the device, the
religious pretensions of its sponsors were fraudulent.

I respect the difficulties my colleagues have with the Ballard
case, but I do not think it compels the result they reach. That
was a criminal prosecution for mail fraud of an individual who
proclaimed as a religion the fact that he was a "divine
messenger" [**56] endowed by the appointment of "St. Germain"
with the power to cure all diseases. The case, at least in its
then posture, did not involve a practice of giving healing
treatments for hire, much less the sale and use of devices like
the meters with which we are concerned here. To the extent that
there are expressions in Ballard that may conceivably point in
the direction the majority goes, I would limit them to the
peculiar facts of that case, which, to repeat, did not involve
the use of misbranded devices and did result in criminal
proceedings against the persons there involved.

I am not, however, satisfied that the Government officials did
not sweep too broadly in this seizure. The meters are vulnerable
to seizure only if they are misbranded, and the misbranding here
must be found in separate, but associated, pieces of literature.
The record before us is such as to support a finding that certain
items of the Scientology literature did contain healing claims
(i.e, "Cancer has been eradicated by auditing out conception and
mitosis"); and that the association of these claims with the
meter is sufficiently close as to justify the latter's seizure.
But this relationship in the case [**57] of one or more books or
pamphlets would not necessarily mean that all the Scientology
literature is subject to confiscation. Every aspect of the
practice or preaching of a religion cannot be interfered with
simply because one phase of it is exposed to legal action.

The District Court was at some pains to identify those items of
literature which effected misbranding of the meters, and those
which did not. It is not clear to me that this separation was
uniformly successful in differentiating affirmations of faith, on
the one hand, from representations as to the curative capacities
of the meters, on the other. Indeed, it may be that, absent a
special showing of need beyond that for evidentiary use, the
Congressional purposes are exhausted by a seizure and permanent
retention of the devices alone. Certainly, as a practical matter,
the objectives of the statute would normally be realized thereby,
and difficult problems of religion and speech, inherent in the
wholesale seizure of printed matter, avoided.

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