The Berkman Center for Internet & Society -- Harvard Law School

http://cyber.law.harvard.edu/home/home?
wid=10&func=viewSubmission&sid=2549

Over the course of the recent fall semester, the Berkman Center's
Clinical Program in Cyberlaw continued to expand the scope and
variety of its clients and projects. One of the Clinic's
consistent, major priorities has been the protection of open and
free expression online, and it has provided legal assistance and
amicus briefs in a number of important cases threatening online
speech, including Gentle Wind Project v. Garvey. The Clinical
Program first helped draft briefs that, in January 2006, resulted in
the Gentle Wind Project's racketeering and defamation lawsuit
against clients Jim Bergin and Judy Garvey being thrown out of
federal court. After the lawsuit was re-filed in state court, the
Clinic's continuing assistance in preparing for trial helped lead to
a recent, highly favorable settlement under which the Gentle Wind
plaintiffs effectively abandoned their claims, Bergin and Garvey
remain free to criticize the group and its practices on their web
site, and the couple will receive compensation.(Read more about the
Gentle Wind case)

[....]

The Gentle Wind Project ("GWP") was a "spiritual-healing" group that
produced and distributed what it characterized as "healing
instruments" based on designs communicated from "the spirit world."
Husband and wife, Jim Bergin and Judy Garvey, left the group and
started a web site, "Wind of Changes," to help others make informed
decisions about GWP. On their site, Bergin and Garvey recounted
their experiences with Gentle Wind and described what they
characterize as the group's "bizarre" belief systems and practices.
GWP threatened the couple with legal action and then, in May 2004,
the group and a number of its leaders filed suit against them and
various others in federal court in Maine. Although their financial
resources were stretched thin, Bergin and Garvey steadfastly refused
to give in to GWP's demands that the Wind of Changes site be shut
down or their critical statements be withdrawn.

The Berkman Clinical Program became involved in the federal suit in
part because GWP alleged that Bergin and Garvey's posting of their
experiences and the linking among various web sites relating to them
constituted not only defamation under state law but also violated
the federal RICO racketeering statute, a legal theory that, if
successful, could have seriously chilled critical online speech. The
federal court's January 2006, decision concluded, however,
consistent with legal arguments drafted by the Clinic, that the
exchange of e-mails among the defendants and hyperlinks between
their respective web sites did not create the necessary racketeering
enterprise and "are simply not the type [of relationships] to which
RICO applies." Accordingly the court granted summary judgment for
the defendants on the RICO claims and dismissed the remaining state-
law defamation claims. GWP immediately refilled the state law claims
in Maine state court, and the case was scheduled for trial in
December 2006.

In June 2006, the Maine Attorney General's office, which had been
monitoring the litigation, brought an action against GWP under the
Maine Unfair Trade Practices Act. Shortly afterward, GWP's lawyers
withdrew from representing the group, citing lack of payment. On
August 14, 2006, the State of Maine entered into a Consent Decree
with GWP, which prohibited the named members of GWP from making
certain health and research claims about the "healing instruments"
or from serving as fiduciaries or advisors for any other Maine
nonprofit. GWP itself was dissolved and the assets remaining in the
GWP estate were to be distributed by the Attorney General as
restitution to consumers who since 2003 purchased a "healing
instrument," and to a Maine charity that provides services to those
with mental health disabilities. The Maine AG noted in a press
release that GWP had "damaged the public's trust and it should not
be allowed to continue."

Notwithstanding GWP's collapse in Maine and the fact that many of
Garvey and Bergin's allegedly defamatory assertions had been
admitted by them in the Consent Decree, the remaining plaintiffs,
six senior GWP members, vowed to continue to fight the state law
case. The Berkman Clinical Program continued to assist Bergin and
Garvey's local Maine counsel, Jerrol Crouter of Drummond Woodsum and
MacMahon, in preparing the case for trial. In particular, clinical
student John Horsfield-Bradbury researched and provided guidance on
various complexities of Maine defamation law and prepared draft jury
instructions for submission to the court. Barely over a month before
the scheduled trial, the GWP plaintiffs asked for a settlement on
Bergin and Garvey's terms.

In signing the settlement agreement on November 8, 2006, the GWP
members dismissed the current suit and permanently abandoned any
ability to sue Bergin and Garvey for anything the couple has
written, including describing GWP as a cult, stating that the
GWP "healing instruments" are "snake oil," or reporting the
existence of group sexual activities, known to inner-circle members
as "energy work." Of critical importance, Bergin and Garvey are
expressly allowed to keep their Wind of Changes site open without
any interference from GWP. They also will receive "an undisclosed
amount" from the Receiver of the GWP Estate as compensation.

Following the settlement, Bergin and Garvey released a statement
detailing the long history of the case and praising the significant
contributions of the Berkman Clinical Program. The settlement also
received favorable press coverage in New England and among the anti-
cult community, including:

"GW Drops Lawsuit Against Couple," Portland Press Herald

"Gentle Wind Drops Lawsuit Against Whistle Blowers." Boston Globe

"Whistle Blowers Knock Hot Air out of Gentle Wind," F.A.C.T. Net

The Berkman Center's Clinical Program in Cyberlaw provides high-
quality, pro-bono legal services to appropriate individuals, small
start-ups, non-profit groups and government entities regarding
cutting-edge issues of the Internet, new technology and intellectual
property.