Schism – The Satanic Temple, a Lawsuit, and the Necessity of Clear Minded Settlement
In this article we will explore the details of a lawsuit (United Federation of Churches LLC v. Johnson et al., Case No. 2:20-cv-00509-RAJ) filed by the United Federation of Churches LLC, better known as The Satanic Temple, against four defendants for a multitude of claims across three separate complaints. As the litigation in question has now gone on for twenty-one months with no apparent resolution, this article is broken into sections for ease of reading. We will begin by laying out the basic background of the case and core issues at hand.
General Background
On April 3rd, 2020, the United Federation of Churches LLC (which does business under their more well-known name “The Satanic Temple”, henceforth referred to as “TST”) filed a complaint for five separate tort actions against the defendants David Alan Johnson, Leah Fishbaugh, Mickey Meeham, and Nathan Sullivan. The complaint was filed in the United States District Court for the Western District of Washington. The crux of the matter is the apparent conflict between the defendants – previously involved in a local TST “chapter” organization in Washington state – and the central TST organization and leadership body. To better understand this conflict we must first lay out the basic workings of TST’s organizational practices and the relationships of the entities involved to each other and to these organizational bodies.
TST, or more properly the United Federation of Churches LLC, is physically headquartered in Salem, Massachusetts. This is the main body of TST, with local affiliate groups serving as “chapters” of the main body. As TST themselves plainly stated in their own complaint, these chapter organizations are allowed to operate with a great degree of autonomy (take note, we’ll look at this issue again later), with the primary tie to the main organizational body appearing to be formed through the process of starting a “congregation”. The language of any contracts used in this process and what legal duties this creates – if any – is not abundantly clear, nor was it made so in TST’s complaint or other pleadings. However, given the apparent level of autonomy afforded to these chapter organizations, we will assume that any agreements between them and the main organizational body are fairly loose and designed primarily to ensure only a baseline level of conformity to TST’s expressed principles and desired practices, an interpretation backed by the language of TST’s complaint.
The defendants in this case were involved in one of these chapter organizations, the Washington state chapter (officially titled The Satanic Temple – Washington State), which has no physical headquarters. More specifically, the defendants were approved administrators of this chapter’s social media pages (again, take note of this), most notably two Facebook pages associated with the chapter. This chapter is led by two individuals, one serving as “Chapterhead”. Until March 12th of 2020 this Chapterhead was assisted by a sixteen member advisory council, on which the defendants together held four positions.
During March of 2020, the defendants performed actions that created, as TST describes it, “friction” between the defendants, the Washington Chapterhead, and apparently TST leadership itself. Said actions began with the posting of material through the TST Washington chapter’s Facebook pages that the Washington chapter leadership (and ostensibly central TST leadership) found objectionable, insofar as it was presented as material published by the TST Washington chapter itself and not as material published by a merely affiliated individual acting in their personal capacity rather than as an official representative of the chapter.
This conflict between the defendants and TST leadership culminated in the defendants removing other administrators of the Facebook pages and seizing control of these pages, the TST Washington Twitter account, and a Gmail account, with at least the former two acts having been done as an apparent act of protest against what the defendant’s ostensibly viewed as TST not living up to its stated ideals and principles. In other words, the defendants appeared dissatisfied with the direction of both the TST Washington and central TST organizations and their apparent social policy goals. In addition, upon examining information external to the case, there is a notable amount of political conflict in and around TST as an organization and this conflict appears to have been influential in both the defendant’s actions and in the inability of the parties to amicably resolve their issues without litigation.
To briefly summarize the factual background thus far –
TST, as a business entity, is headquartered in Salem, Massachusetts and permits the formation of affiliate organizations known as “chapters” or “congregations”. These affiliate orgs operate largely autonomously, though are expected to adhere to some basic guidelines set by the main organization.
The defendants were involved at what I would characterize as a high level within the Washington state TST chapter organization. The defendants were approved administrators of this organization’s social media accounts, most notably its Facebook pages (the main page and a tertiary page referred to as the “Chapter” page and “Allies” page, respectively), and held a quarter of all available positions on the advisory council to the Chapterhead.
Throughout March of 2020, the defendants performed acts that brought them into direct conflict with both the Washington chapter leadership and ostensibly central TST leadership itself. Some of those acts are now the subject of multiple tort claims by TST. These acts arose primarily out of an ideological schism between the defendants and TST leadership at both the state chapter and national level. Defendants and TST leadership were apparently unable to resolve their ideological differences regarding the principles and purpose of the organization, so the defendants seized control of social media accounts to which they had previously been granted administrative access and duties in an apparent effort to publicly protest the organization’s policies, in addition to airing grievances with the leadership.
This largely satisfies the general background of the case, so on that note I will now present a broad overview of the case’s litigation history.
Litigation – General Overview
The initial Complaint was filed on April 3rd, 2020, in the District Court for the Western District of Washington. The complaint sought money damages and injunctive relief against the defendants. The claims stated were – a CFAA (Computer Fraud and Abuse Act) violation, cyberpiracy, tortious interference with business expectancy, violations of the Consumer Protection Act or “CPA”, and defamation. The injunctive relief sought includes a demand that defendants be required to surrender control of the Facebook pages and “TST materials”, as well as enjoining defendants from “publishing false statements” about TST and its membership.
The defendants filed a Motion to Dismiss (MTD for short) on June 1st of 2020. This was followed up by a Response to the MTD on June 22nd by the plaintiff. This in turn was followed by a Reply by the defendants to the Response to the MTD.
The court granted the defendants MTD on February 26th of 2021, dismissing 4 claims with leave to amend and 1 claim – the defamation claim – with prejudice.
Plaintiff filed their First Amended Complaint on March 29th of 2021, realleging the CFAA violation, modifying their tortious interference with business expectancy claim to a simple tortious interference claim, and discarding the CPA claim in favor of a trespass to chattels claim, while also adding a conversion claim.
After some largely inconsequential (for the purposes of this article) motions and likely some conferences between the party’s attorneys, the plaintiff filed a Second Amended Complaint on May 24th, 2021. This complaint retained the CFAA violation, tortious interference, trespass to chattels, and conversion claims (modifying some or all along the way in an attempt to cure deficiencies with the complaint) while also adding a trademark dilution claim. Demands for injunctive relief were retained and modified, with the demands being that defendants turn over control of the “Allies” Facebook page and “TST materials”, and that they be enjoined from future administrative level access of any of TST’s internet based media.
The defendants filed a MTD the Second Amended Complaint on June 7th, 2021, after which the usual round of Response and Replies took place. This leaves the last major action in the case with the defendants Reply to the plaintiffs Response to the Motion to Dismiss, filed on July 2nd of 2021.
Money damages sought all together exceed $142,973, not counting any possible punitive damages.
All parties have been represented by attorneys throughout the course of litigation.
This overview should serve as a reference for keeping track of the claims and timeline of the litigation, which we will discuss in depth below.
Litigation – In Depth Analysis
Before beginning, it should be noted that both plaintiff and defendant pleadings can present biased interpretations of the facts at hand. While this is problematic for reporters and others trying to parse fact from fiction and right from wrong, it is a reality of the legal system we must contend with. Both parties will generally seek to present their side of the story as favorably as they can while avoiding pitfalls such as perjury. It is additionally unhelpful that judges can be wrong, and can issue opinions which contain bad interpretations of the law or even outright fantastical legal theories in more egregious examples. That said, I will do my best to guide the reader through this lengthy slog of litigation that is already at a fairly advanced stage, but that does not mean I am infallible. If you need a legitimate legal opinion, I suggest contacting a licensed attorney.
With that said, let’s get started. We will begin by analyzing the pleading that initiated this litigation – the first Complaint – as well as the subsequent Dismissal of the Complaint. I will frame the analysis in this manner both for the sake of brevity and to reduce redundancy – there is no need for two independent sections of analysis, one dedicated to mine and one to the court’s, when the court’s opinion is the one that ultimately matters.
The complaint opens with a preamble wherein TST makes mention of two “hacked” social media accounts. The very first sentence of the complaint thus states a falsehood. The social media accounts in question were never “hacked” nor was such hacking necessary for defendants to gain access to the accounts, as admitted by TST themselves in their own complaint.
TST plainly admits that the defendants were previously approved administrators of the social media accounts in question and had already been given admin level access to these accounts as part of their duties. Whether or not defendants exceeded their authorization regarding content posted through these accounts is not relevant, as merely using an account in a manner you were not permitted to but had been granted access to is not hacking. TST makes no mention of password cracking or other illicit methods being employed by the defendants to gain access to the two accounts in question and fails to provide any evidence whatsoever in support of this claim, as noted by the court in its dismissal. This is a poor way to begin a complaint and does not bode well for the remainder of it.
Continuing, there are several notable pieces of information. The first is TST Washington’s “Membership Agreement and Code of Conduct”, which the plaintiff claims forms the contours of the defendants authorization to access and use TST and TST affiliated social media accounts. This agreement is wholly insufficient as a contract regarding defendant’s positions within TST Washington and in relation to the main TST organization. It is only a general membership agreement – seemingly the exact same agreement all TST Washington members sign – and as such makes no specific reference to the defendants and their roles as account admins for TST Washington, nor does it outline their exact permissions and duties. The agreement instead only provides a very broad outline of expected behavior from any TST Washington member, general grounds for membership termination, and other such boilerplate. It is clear that this agreement is not legally sufficient to allow it to serve as the backbone of TST’s CFAA claim, yet TST bewilderingly relies upon it for this purpose regardless. Indeed, it appears the court ignored this membership agreement in its entirety, with no mention of it being made in the Dismissal of the initial Complaint.
The next notable piece of information is the apparent autonomy that TST admits affiliate organizations are allowed to operate under.
It is admittedly difficult to theorize as to how much legal weight this arrangement can bear in determining the defendant’s liability for the claims made in the complaint, but this is not generally supportive of TST’s position. The primary issue I see, given the admitted autonomy of chapters and the position of the defendants within the chapter, is that this does not lend credence to TST’s Consumer Protection Act claim, more specifically the portion regarding defendant’s allegedly illicit possession of “trade secrets” – this being composed of such things as membership rosters, internal policies, and meeting notes.
If the chapters are autonomous, what legal interest does the central TST organization have in these materials? Additionally, why would it be improper for a previously governing member of the chapter to be in possession of these materials? Indeed, TST admits that the particular defendant in question – Sullivan – was previously entrusted with these documents.
TST largely avoids elaborating on why the defendant’s possession of these materials is either part of an actionable tort or at least presents a legitimate security/financial risk to the organization and/or its members. Instead, TST resorts to conclusory statements about the documents being “sensitive” (why are they sensitive?), or that they constitute “trade secrets” (how?). Looking at this point of the Consumer Protection Act claim in isolation it appears to present no viable tort action. TST does not allege, beyond the conclusory statements offered in the complaint, that any material harm is being or has been done by the defendant’s possession of these materials.
Moving on, we will now examine each tort claim in order. The first claim is a CFAA or Computer Fraud and Abuse Act violation. To be frank, litigation and jurisprudence on the CFAA and cybersecurity law in general is in a poor state, one which may be likened to the state of spaghetti in a swirling vortex. It is confusing, occasionally contradictory, and ultimately a tangled mess of ever changing interpretation. One recent change in interpretation which may affect the outcome of this case (as the CFAA claim was maintained in the Second Amended Complaint) is the recent U.S. Supreme Court ruling in Van Buren v. United States (593 U.S. __ (2021)), which appears to have narrowed the scope of the CFAA.
TST largely relies on the theory that the defendant’s alleged violation of the terms of the Membership Agreement is sufficient to state a CFAA claim. This is in fact not sufficient, as demonstrated in the court’s Dismissal of TST’s initial complaint – the court cites United States v. Nosal (676 F.3d 854, 857) in explaining that violations of a company’s use restrictions (more commonly “terms of use”) are plainly insufficient grounds for stating a CFAA claim. The relevant portion of the opinion in Nosal states “…we hold that the phrase “exceeds authorized access” in the CFAA does not extend to violations of use restrictions.”
However, in their response to the defendant’s Motion to Dismiss, TST cited two other cases in support of its claim - Craigslist Inc. v. 3Taps Inc. and Ticketmaster L.L.C. v. Prestige Entm’t W., Inc. In both of these cases the defendant’s access privileges were revoked, and they were then subsequently notified of their access privileges having been revoked. TST – in their initial complaint – fails to plead beyond conclusory allegations that they had adequately notified the defendants that their access privileges were revoked. This is what appears to have killed TST’s initial CFAA claim, as seen in the court’s Dismissal. For clarity, “those cases” in the quote below is in reference to Craigslist and Ticketmaster.
The second claim is for Cyberpiracy under the ACPA component of the Lanham Act. In plain terms, TST is alleging that the defendants are violating their trademark rights to the “The Satanic Temple” trademark, for which TST possesses a valid trademark registration. TST alleges that their trademark rights are being violated as the post-domain path associated with the TST Washington Facebook pages contains the words “The Satanic Temple”.
It appears that this claim simply has no legs upon which to stand. The appearance of trademarks in “vanity URLs” and other such post-domain paths is not generally considered a trademark violation under the provisions of the Lanham Act, the law upon which TST relies for this claim. See generally Interactive Prod. Corp. v. a2z Mobile Office Sols., Inc., - “Upon review of the record, the Court finds no genuine issue of material facts that consumers are likely to be confused by the use of "laptraveler" in the post-domain path of a2z's URL. Accordingly, summary judgment in Defendants' favor on this claim is appropriate.” Interactive is cited in the court’s dismissal and forms most of the substantive background upon which the court relied in dismissing this claim.
The third claim is for Tortious Interference with Business Expectancy. This claim is made on the basis of the alleged pecuniary (read: monetary) value of the Facebook pages in question. Simply put, TST alleges they had a contractual relationship with Facebook, that this relationship facilitated economic activity, and that the defendants wrongfully interfered with this relationship. While this is in my opinion the claim with the most potential strength, it fails in that TST did not meet the pleading standards for such a claim in their initial complaint.
In order to properly plead a claim for Tortious Interference with Business Expectancy under Washington state law, the plaintiff must satisfy five distinct elements –
· (1) the existence of a valid contractual relationship or business expectancy
· (2) that defendants had knowledge of that relationship
· (3) an intentional interference inducing or causing a breach or termination of the relationship or expectancy
· (4) that defendants interfered for an improper purpose or used improper means
· (5) resultant damage
Both the plaintiff and defendants made use of analogies in their arguments on this claim, likening the acts in question to the defacing of art by an employee and to the theft of widgets from a manufacturer, respectively.
The court does not appear to have taken kindly to either of the party’s above arguments on this claim, with the court’s apparent irritation with both parties bleeding through into the Dismissal, with the court frankly stating “These arguments are unhelpful.” The court does however find that TST adequately plead the first, third, and fifth elements of the claim, leaving them two elements short of an adequate pleading.
Regarding the two remaining elements – elements 2 and 4 – the court found that TST failed to allege beyond conclusory statements that the defendants had knowledge of TST’s contractual relationship and/or business expectancy in the Facebook accounts, and that the defendant’s interference was wrongful beyond the interference itself. It is my opinion that the fourth element will be the most difficult to satisfy, but this is a matter which will be explored further when we discuss the Second Amended Complaint.
The fourth claim in the first Complaint is for Violations of the Consumer Protection Act, specifically Washington’s CPA law. The elements necessary to adequately plead a CPA claim are below.
· (1) an unfair or deceptive act
· (2) in trade or commerce
· (3) that affects the public interest
(Note – the first three elements should be read as though they are “chained” together)
· (4) injury to the plaintiff in his or her business or property
· (5) a causal link between the unfair or deceptive act complained of and the injury suffered
This is where my earlier analysis of the apparent autonomous status of TST chapter organizations would have come into play had TST properly pled this claim, which they did not do. The court spends little time analyzing this claim, quickly reaching the conclusion that TST has failed to allege all five elements of a CPA claim.
In other words, TST failed to offer any serious argument for this claim at all. The concise and near analysis-free dismissal of this claim by the court likely accounts for it having been dropped in the amended complaints, even though the claim was dismissed with leave to amend. It appears that TST simply had no substantive basis upon which to argue this claim.
The final claim in the initial complaint is an utterly laughable Defamation claim. This is the sort of defamation claim a petulant child would file after a round of name calling on the playground, and it was appropriately dismissed with prejudice (for the layman, a dismissal with prejudice means the claim cannot be re-pled in an attempt to cure its deficiencies). For this claim, we must rely on TST’s Response to the defendant’s Motion to Dismiss, wherein they provide more detail regarding their defamation claim than in their Complaint.
In the Response to the MTD, TST claims that the defendant’s statements and insinuations that some in TST leadership are “neo-Nazis” and that TST has a “weird coziness with the alt-right in general” are false statements of fact, I.E. legally defamatory.
This claim is plainly false and legally unsound. Simple accusations of racism, association with extremism, and similar such statements are not defamatory and cannot be so as they are not false statements of fact, something TST’s counsel bewilderingly fails to understand. Whether out of willful bad faith or simple ignorance and ineptitude, TST and its counsel have no excuse for making such a flagrantly frivolous claim.
The defendants put forth the Doctrine of Ecclesiastical Abstention as a defense to this claim. In simple terms, the Doctrine states that defamation claims may be dismissed when determining falsity of the statements in question would require the court to delve into doctrinal matters and thus to rule on church doctrine – something the court cannot do without violating the First Amendment. The court agreed with the defendants here, essentially interpreting this conflict as a religious schism and dismissing the claim with prejudice as it cannot determine the falsity of the statements in question without also ruling on the validity or factual content of the doctrines and beliefs of The Satanic Temple as a religious organization.
While I agree with the court’s ruling on this claim and find it satisfactory, I would like to analyze the claim further. As mentioned above, the type of statements in question are not defamatory under U.S. law as they are not provably false statements of fact. Examples of cases in which a plaintiff’s claim for defamation regarding such statements was dismissed include Brimelow v. New York Times Company [Case no.1:20-cv-00222-KPF] (wherein the defendant variously referred to the plaintiff and/or their website as “white nationalist”, “an anti-immigration hate website”, and the like) and Weidlich v. Rung [Case no. M2017-00045-COA-R3-CV] (wherein the defendant called the plaintiff a white supremacist).
The bottom line is that hyperbolic and opinionated statements regarding an entity’s beliefs or political affiliations are not defamatory. For all of TST’s whinging about the Doctrine of Ecclesiastical Abstention and the defendant’s application of it to this case, it is largely irrelevant when it comes to the viability of this claim. My point here is simply that even without this defense the claim would have failed as the statements in question are constitutionally protected. This claim would not have withstood even rudimentary First Amendment analysis and as such never should have been put forward. That TST and their counsel had the gall to continue in their pernicious advocacy of this claim via a Motion for Reconsideration in which TST’s counsel – against all reason – argues that whether TST’s doctrine promotes fascism is a question of fact defies belief, and I expect their motion on this issue to be denied.
That wraps the initial round of litigation. In summary, TST made five claims against the defendants, all of which were dismissed, with the defamation claim being dismissed with prejudice. However, the litigation does not end here. TST will attempt not once, but twice to revive this suit through the filing of two amended complaints. As this article has already exceeded 3800 words in length and the amended complaints are not substantially different from the initial complaint – barring the new claims – I will take a much shorter and more summary based approach in the following analysis.
Litigation Analysis Continued – Amended Complaints
TST has apparently chosen not to settle after their first total loss against the defendants, instead opting to drag this litigation out to the bitter end even in the face of their case’s apparent weakness. Here in the amended complaints TST appears to adopt a “spaghetti, meet wall” litigation strategy, wherein they continually test new claims and fresh spins on old claims in order to continue litigating. As the First Amended Complaint was quickly abandoned after a conference between the party’s attorneys, I will instead focus on the Second Amended Complaint, which is the most recent complaint in this litigation and the one which will be the subject of the court’s next (and as of the time of this writing, unissued) order.
Before continuing, there are some general pieces of information that need to be covered. First, at some point in this litigation TST had regained control of one of the Facebook pages in question (the main “Chapter” page), which was noted in the First Amended Complaint. This essentially moots any question of injunctive relief regarding this page, though TST reaffirms this demand in the Second Amended Complaint regardless, claiming an injunction is needed to prevent the defendants from engaging in future attempts to gain access to the Facebook page. TST cites no evidence whatsoever in favor of this supposed need for an injunction. In other words, it appears the defendants have made no further attempts to gain access to the Facebook page or other social media of TST and have not expressed any such desire in currently discoverable materials. TST’s demand therefore appears to be based on little more than the products of an overactive imagination.
While the “Allies” page – to my knowledge and according to the information available in the pleadings – has not been turned over to TST, neither has TST alleged that they ever requested its return either through Facebook or by directly requesting such of the defendants. Indeed, upon review of the pre-litigation demand letter entered as an exhibit by the plaintiff, along with another exhibit (an email sent to David Johnson by Tarkus Claypool) to which TST refers in support of their claims, no mention is made of the “Allies” page at any time. TST appears to express interest in this Facebook page and in being granted injunctive relief regarding possession of this page yet has made no apparent attempt to recover it or to even mention it at all outside of litigation, which does not create the impression that this is a serious matter worth thousands of dollars in legal fees or the occupation of the court’s already limited time.
Circling back to the requested injunctive relief, TST also requests injunctive relief regarding the “membership documents” possessed by one of the defendants. TST again makes conclusory allegations that these documents constitute “highly sensitive materials” and “trade secrets”, and asserts that the court must order the defendants to turn over the documents and destroy any other copies in their possession. After failing to acquire the requested relief on this matter through the dismissed Consumer Protection Act claim from the initial complaint, TST revives this request through two new claims – Trespass to Chattels and Conversion. Essentially, TST now alleges that the documents constitute chattel (read: “moveable property”) owned by TST and that the defendants have misappropriated them. Again we run into the problems presented by TST and their chapter’s poor use of contracts. This is a matter that would have likely been resolved swiftly with the proper application of a well written contract that specified exactly who was granted ownership of or access to the documents and under what conditions that ownership or access may be changed or revoked. As it stands, neither party appears to have a clear and legitimate claim to ownership of the documents. Without a proper contractual agreement, this argument essentially devolves into the legal equivalent of magical orb pondering, wherein the parties attempt to divine the answer to their claims via litigation voodoo, conjuring largely baseless legal theories at will. As such, I suspect the court will find frustration with both party’s arguments on this matter.
With those issues addressed, I will offer some comparatively brief analysis of the claims and rebuttals to such in the Second Amended Complaint and the responsive motions that followed.
The Second Amended Complaint contains five claims, the first being a modified version of the CFAA violation claim that originated in the initial complaint. TST now alleges – among other things – that the defendants misappropriated the Facebook pages in an attempt to diminish donations to TST and to divert donations to a supposed “competitor organization” referred to as “The Satanic Temple 2: Electric Boogaloo.” It should be noted that this is quite obviously a joke – referring to sequels or second occurrences of events as “Electric Boogaloo” or some variation thereof is a common meme. TST offers no serious evidence to support its claim that the defendants were earnestly attempting to create a competing organization, especially not one which would operate under that name. The only time this supposed organization is mentioned is once within a Facebook thread discussing the events surrounding the defendant’s actions and their subsequent removal as members of TST and its affiliate chapter. It is mentioned in passing by an unknown individual (not one of the defendants) as an obvious joke, referring to the potential names of a new Satanism styled group which would ostensibly be hosted online.
That TST and its counsel seriously attempt to build a legal claim upon a plainly farcical suggestion by an uninvolved third party is in itself farcical, and as such I feel little need to dedicate further writing to this claim.
The second claim is a modified Tortious Interference claim carried over from the initial complaint. The most substantial modification to this claim is the inclusion of TST’s allegation that the defendants were attempting to create a competing organization, something not included anywhere in the initial complaint. Indeed, this figment of TST and their counsel’s imagination – the aforementioned “The Satanic Temple 2: Electric Boogaloo” – was not mentioned at any time in the initial complaint or any subsequent pleadings regarding that complaint. Aside from that, TST attempts to cure this claim’s earlier deficiencies, addressing the previously unaddressed elements of the claim. TST now makes slightly stronger assertions regarding the defendants knowledge of their business relationship with Facebook, and alleges the below regarding the “improper purpose or means” element of the claim.
Whether this is enough to cure the deficiencies of the claim I do not know, but I suspect it is not. On the “improper purpose of means” element in particular I do not foresee success. The claim that the defendants were creating a legitimate competitor organization is, as noted before, farcical. I expect the court will see through this fantasizing and ignore this element of TST’s theory. As for the remaining element – that the defendant’s interference was wrongful beyond the interference itself in that they interfered for the purposes of demeaning TST in an intentional effort to reduce donations to TST and diminish its membership base – TST offers little support beyond conclusory allegations, which has become a running theme in this litigation. Admittedly, this is a problem that may be cured through additional discovery, but that enters the realm of pure speculation on my part. I will not attempt to divine the existence and contents of unknown information which may or may not be held by either party.
Moving on, the third claim is a new Trespass to Chattels claim. My analysis of this claim was largely completed earlier when discussing the injunctive relief TST had requested and the associated contractual problems (which have gone largely unaddressed by either party), and as such there is little more to say here. It should be noted that the fourth claim – the Conversion claim – was apparently included only as a sort of sibling claim to the Trespass to Chattels claim. This appears to be a quirk of Washington state court procedure, see the excerpt from the Second Amended Complaint below for further explanation.
The fifth claim is a new Dilution claim under 15 U.S. Code § 1125. In other words, TST is alleging the defendants have caused dilution of their trademark – “The Satanic Temple” – by impairing its distinctiveness via its use in the previously renamed “The Satanic Temple – Washington State” Facebook page, which while under control of the defendants had been renamed to “Satanic Washington – Archived Temple Chapter”, and in the plainly fictitious competitor organization “The Satanic Temple 2: Electric Boogaloo.”
Yes, TST relies upon the imaginary competitor organization which was discussed earlier to support this claim as well. To be frank, I find TST’s reliance upon this fairy tale as a crutch for not just one but three of its five current claims to be rather irritating, and I reiterate that I don’t expect the court to take this theory seriously either.
Regarding the remainder of this claim, the next most substantive element of it – in my opinion – is the allegation the defendant’s “competitor group” was selling merchandise which featured the defendant’s “derivative marks” and which was being advertised on the TST “Allies” page. This allegation is, again, largely conclusory. No exhibits are cited to, and no further detail is given. No other relevant information can be found in other parts of the complaint.
Going further, it is not at all clear that TST’s marks were being used in commerce rather than for the purposes of criticism, which is a protected use of another entity’s trademarks. Even if they were being used in commerce, TST must demonstrate the marks weren’t being used for the purposes of comparative advertising (assuming no other commercial use). See generally 15 U.S.C. § 1125(c)(3)(A)(ii). There is little else to say about this claim.
Conclusion
Overall, I personally frown upon this sort of straw-grasping litigation and believe both parties would be best served through settlement. That settlement has not yet occurred is simultaneously incomprehensible and unsurprising. Neither party is benefiting from this litigation and both are unlikely (in my estimation) to recover their legal fees. On the other hand, there are clearly internal political issues and emotional sticking points at play that are likely influencing the clarity of thought and decision making ability of all involved. On that note I don’t particularly care to comment further – I am not, nor have I ever been, a member of The Satanic Temple or any affiliated groups. I have otherwise never had any particular interest, previous to this writing, in The Satanic Temple and any affiliated groups. I have no personal stake in the ideology and political activities of The Satanic Temple and its members or leadership. As such I am largely unfamiliar with the apparent conflicts and controversies within the organization, but the curious reader can easily perform their own research into this topic if they wish to learn more.
While I may question the wisdom of some of the defendant’s actions, I also question TST’s bringing of plainly frivolous claims (for which the public also suffers harm, as even frivolous claims require precious court resources to litigate) and their general litigation tactics. For example, why weren’t the Dilution and Trespass to Chattels/Conversion claims pleaded in the initial complaint? It seems clear to me that nothing was preventing those claims from being pleaded at that time, so why wait? It creates the impression that TST is not legitimately seeking remedies for any harm caused, but is instead employing litigation in a “process as punishment” tactic to sap the defendants resources and induce what I’m sure is a significant amount of stress into their day-to-day lives. By dragging the defendants through the civil court system, TST may simply be attempting to get back at the defendants in a tit-for-tat conflict which has now spanned the course of 21 months and counting. In terms of my opinion on the outcome of the litigation thus far, I believe this court has acted appropriately and without any notable bias toward either party. I am satisfied with the court’s first dismissal and the legal theories within, insofar as they are sane and comply with current law and jurisprudence.
In regards to the overarching sociopolitical issue at play here – that being the intersection of the law and what actions constitute acceptable forms of protest or attempts to acquire redress – I foresee that most readers will see the situation as one with three primary interpretations, one interpretation essentially being bimodal. The first two interpretations exist in tandem – on one side are those who promote risky direct action and tactics that may or may not be legally questionable as long as the ends are just or the cause of action is sufficiently heinous, and those who may find the desired ends just (or at least find good cause to protest) but do not believe that alone is sufficient to justify the use of potentially illegal or otherwise risky means. The third interpretation is of course that the defendants may be at least partially in the wrong (in a moral sense) and may not have had good cause for their actions.
To be frank, I find the overall tenor of this conflict to be somewhat petty on both sides (though I acknowledge those closer to the issue may not see it that way), hence my disbelief at the inability of the parties to settle and move on from what is clearly a destructive path which benefits no one and serves only to occupy already insufficient court resources. I hope, in spite of the small odds, that the parties find a way to step back from the brink and reassess their current course of action in favor of an agreeable settlement solution.
As the case has not resolved, there is little else to comment on. We must await the court’s next ruling for any further substantive information regarding the legal legitimacy of the plaintiff’s claims or the defendant’s defenses. Should the case resolve via litigation, I will likely provide an update when that occurs.
Until then, I can be followed on Twitter @SocialActuality, and you can also subscribe to the blog’s email list for alerts on new articles.
UPDATE 4/20/2022 - As predicted, TST's motion for reconsideration on the previously dismissed defamation and ACPA claims was denied on 4/12/2022. Additionally, it appears litigation will continue in this case as the defendant's Motion to Dismiss was both granted and denied in part on 4/15/2022. TST's CFAA claim was largely dismissed with prejudice with one particular allegation dismissed with leave to amend, and TST's FTDRA claim was dismissed with leave to amend. The motion to dismiss TST's tortious interference claim however was denied, as well as the motion to dismiss the trespass to chattels and conversion claims (excepting those regarding the "Chapter" page) regarding the "Allies" page and the previously discussed business documents.
(2/1/2022 - Article updated to include link to United Federation of Churches LLC v. Johnson et al Court Listener docket.)
- Vex