Stanford Law School Center for Internet and Society writes on the
importance of the recent order from Federal Judge Carter dismissing
the Millers and GWP from Federal Court:
http://cyberlaw.stanford.edu/packets/vol_3_no_6/003812.shtml
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Stanford Law School Center for Internet and Society, Vo. 3, No. 6:

"Maine District Court Holds that Group of Individuals Who Published
Criticism of 'Cult' On-line Are Not an Association-in-Fact Under
RICO"


In a recent decision, a U.S. District Court set standards that would
indicate what on-line activities would and would not constitute
racketeering under RICO, the Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. § 1962(c). The United States District
Court for the District of Maine held on a motion for summary
judgment that a group of individuals who published allegedly
defamatory criticism of plaintiff The Gentle Wind Project ("GWP") on-
line did not qualify as an "association-in-fact" under RICO. Having
dismissed the RICO-related federal claims over which it had original
jurisdiction, the court declined to exercise supplemental
jurisdiction over the plaintiff's state claims and dismissed them
without prejudice.

GWP is a non-profit organization "dedicated to education and
research aimed at alleviated [sic] emotional and mental human
suffering and trauma." As part of GWP's mission, its members
manufacture objects which they describe as "healing instruments that
are designed to restore human beings to a natural state of
existence." GWP then sells these objects to the public in return for
a "donation."

Defendants Judy Garvey ("Garvey") and James Bergin ("Bergin") are
former members of GWP who authored respectively "Insiders' Stories"
and "A Husband's Perspective," documents which purport to describe
their experiences as members of GWP, an organization which they
characterize as a "cult." The documents produced by the defendants
describe "energy work," "consisting of group sex rituals undertaken
between GWP's leader and other members, which were allegedly
required for creation of GWP's instruments." Garvey and Bergin
published their documents on www.windofchanges.org, a website they
developed.

In addition to self-publishing on their own website, the defendants
also contacted the operators of several websites critical
of "cults," including "The Truth Campaign" run by Ivan
Fraser, "Freedom of Mind" run by Steven Hassan, and the "Rick A.
Ross Institute for the Study of Destructive Cults, Controversial
Groups and Movements" run by Rick Ross. The website operators posted
the defendants' documents and provided links to the defendants'
website. After this initial contact, the defendants maintained
contact with the various website operators and continued to
communicate with them over e-mail. These e-mails included advice
about how to respond to criticism from GWP, tips on how to copy and
paste from the GWP website, and research into "transactions relating
to GWP's property."

In determining whether the defendants' behavior came under RICO, the
court considered whether they had formed a "union or group of
individuals associated in fact although not a legal entity." 18
U.S.C. § 1961(4). The court cited the test set out by the Supreme
Court in United States v. Turkette, 452 U.S. 576, 583 (1981), which
held that finding an association-in-fact requires "evidence of [(1)]
an ongoing organization, formal or informal, and … [(2)] evidence
that the various associates function as a continuous unit."
According to the court, the test requires that "at a minimum"
the "enterprise must be sufficiently organized and continuous such
that it exists as an `entity' distinct from the individual
defendant." Using this test, the court found that the defendants
never acted as an organized entity because the group lacked a formal
organization. It did not have a leader, did not have a division of
responsibilities, never conducted meetings, never raised money,
never shared control of the individual websites, and never shared
content without permission.

While the court endorsed the plaintiff's argument that "sharing
information among group members is an activity that tends toward
finding an association-in-fact enterprise," it held that such
sharing of information was not sufficient to find an association-in-
fact without considering "whether the communications were consistent
with an entity demonstrating ongoing organization and continued
coordination." The court found that the e-mails sent by the
defendants were diffuse, disorganized, and rarely of much use to the
other members. Moreover, they frequently involved topics unrelated
to GWP, such as "cordial greetings" and "discussions of politics."
In the few cases where the information was useful, the assistance
was given on an ad hoc basis that reflected the fact that "they
shared common interests, but offer[ed] no proof of ongoing
organization or coordination."

By means of comparison, the court considered RICO cases from the
First Circuit Court of Appeals that had found sufficient evidence of
an enterprise. All of them required that the group in question
maintain a formal structure more developed than that evinced by
the "sharing of information and a few, ad hoc, coordinated
activities." Similarly, the court found that the defendants'
behavior did not accord with the purpose of the "enterprise element"
in the RICO statute as described by the Supreme Court in National
Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 259 (1994),
which held that RICO was intended to "prevent enterprises from
serving as either the `victim' or the `vehicle' of racketeers." In
this case, the court held that "no reasonable person could conclude
that Defendants' either used an association as a vehicle for any
racketeering activities or, that by engaging in such racketeering
activities, they victimized an association to which they were
members." Thus, the defendants were entitled to summary judgment on
the RICO charge because their "organization" was "simply not the
type to which RICO applies."