One of the consistent, major priorities of the Berkman Center’s Clinical Program in Cyberlaw over the last two years has been the protection of open and free expression online. We have 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.
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refused to give in to GWP’s demands that the Wind of Changes site be shut down or their critical statements be withdrawn.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