Chapter 17: Battle Lines Drawn
By Stephen Flurry
“We feel it is our Christian duty to keep this book out of print … because we believe Mr. Armstrong’s doctrinal errors are better left out of circulation.”
— Joseph Tkach Jr.
Transformed by Truth
On February 10, 1997, as my wife and I flew across the Atlantic to Europe for our honeymoon, wcg attorneys, including in-house lawyer Ralph Helge, crossed the street in downtown Los Angeles to file papers against the pcg in a federal court. Three weeks earlier, on January 21, Mr. Helge penned this letter to my father demanding that the pcg stop distribution of Mystery of the Ages:
Dear Mr. Flurry:
It has just come to the church’s attention, through the January 1997 edition of your Trumpet magazine, that you are offering the book, entitled Mystery of the Ages, for distribution.
As you are well aware, the Worldwide Church of God holds the copyright of said book. We are assuming that you are distributing an infringing copy of the same. Therefore, we hereby respectfully demand that you immediately cease and desist from copying, distributing or advertising said book.
We would appreciate your advising us by what authority you are, without the permission of the church, copying and publishing said book?
Please advise us promptly as to your intentions in this matter. If we do not hear from you promptly we shall assume that you are violating the church’s copyright in said regard and that it is your intention to continue to do so. In such case, we will take appropriate action without further notice.1
My father was already prepared for the consequences of his actions. If that meant going to court to fight for “said book,” then so be it. He decided not to respond to Helge’s letter. The battle lines were clearly drawn.
In its February 10 complaint, the wcg suggested that since the pcg might receive public donations for its free distribution of the book, these donations would deprive the wcg of the “benefits” of Mystery of the Ages. We were robbing them of income! They also claimed that because of our action, the relationship between them and their members had been injured. According to the brief, the wcg had already suffered “irreparable damage.”2
Our offices didn’t find out about the court filing until the next day, on February 11, when we received a letter from wcg attorney Benjamin Scheibe of the law offices of Browne & Woods in Beverly Hills. He informed us that on February 12, they would file an Ex Parte Application, asking the judge for a temporary restraining order that would immediately stop us from distribution.3 (An ex parte order is a legal instrument made by or in the interest of only one party to an action, in the absence of the other party.)
To that point, our experience with law firms was minimal—limited to wills and trusts mostly. Now we found ourselves brawling with a church more than 10 times our size and represented by the same law firm that stood down the state of California when it attacked the wcg in 1979! Dennis Leap, who became the pcg legal department the day we found out about the lawsuit, called Terry Moyer in South Carolina. Married to our television agent, Mr. Moyer was one of the few lawyers we knew personally. (Terry is the one who recommended the d.c. attorney I called to ask about the copyright notice.) Though we had never solicited his legal services, we had met with him on several occasions. Terry agreed to represent us for a few days until he could track down a reputable law firm in Southern California.
Moyer responded to Scheibe’s letter the next day: “Please be advised that the Philadelphia Church of God strongly objects to any ex parte proceedings and intends to fully and vigorously contest any and all claims asserted against it ….”4 Two days later, on February 14, we found out that the ex parte hearing had been set for the following week, on February 18.
On Monday, February 17, on the advice of Terry Moyer, we hired the services of the Los Angeles law firm Munger, Tolles & Olson. Mark Helm, who had been appointed lead attorney for the case, had one day to prepare for the hearing. Terry quickly brought him up to speed on the most relevant details of this unusual case, via phone and fax. That night, Mark spoke with Dennis Leap over the phone for about an hour.
The next day, Mark Helm stood before Judge Spencer Letts in a Los Angeles courtroom without anyone from the pcg at his side. He was on his own, having had one day to prepare for this case. The judge had read the wcg’s brief and wondered why there was nothing filed by the pcg. Mr. Helm explained to the court that he had only come on board with the pcg “recently” and didn’t yet know all the facts. We simply did not have enough time to file a response. He was, however, able to offer this succinct explanation to Judge Letts:
This is not a case where the Worldwide Church of God is exploiting the copyright in order to disseminate and earn profits from Mystery of the Ages; this is a case where they are trying to suppress and not disseminate Mr. Armstrong’s books; that’s our understanding.5
To which Judge Letts responded, “That’s mine as well.”6 Our attorney was stunned by this response. With only the wcg’s brief to go on, Judge Letts clearly and quickly established that, in his view, the wcg had no right to suppress Mr. Armstrong’s works! Later in the hearing, the judge turned to the wcg’s attorney and said,
You’re not going to be dealing with a closed mind, but what I know about this case, but for what Mr. Helm [just] said, is what you’ve told me, and it raises, in my judgment, very serious questions and very serious irreparable harm on the other side as well.7
The way he saw it, they were guilty of what they accused us of doing! They caused us “irreparable harm” by attempting to suppress Mr. Armstrong’s works.
In response to the judge’s suggestion that the wcg would lose based on the merits of the case, wcg attorney Benjamin Scheibe exclaimed, “I’m somewhat at a loss with the court’s suggestion, [that] there’s not a probability of success on the merits here.” That became the wcg’s typical response early on in the litigation—they reacted incredulously to anyone who viewed this case as anything other than a simple, garden-variety copyright infringement. They owned the copyright, therefore we couldn’t print the book. It was as simple as that—to them.
But not to us, nor to Judge Letts, nor, as would soon become clear, to many others in the legal world. This was an unusual lawsuit. It was a case where a religious entity was using its copyright to suppress a work it no longer agreed with. Here is how Judge Letts assessed the dispute in that first hearing:
The copyright seems to me to have two primary purposes, neither of which are at issue here. One is to keep there from being confusion about who is the person publishing the work; the second is to keep strangers from profiting from the work. Neither of those is at issue with somebody who wants to suppress the work entirely. … It wasn’t a question of whether there would be two publishers, or three, but rather whether there will be one or none.8
Scheibe’s persistence would not change the judge’s mind. “I don’t think you are going to prevail on the merits,” the judge told him. “I understand your position,” he later said, “but I don’t agree with it.” Mr. Armstrong, Judge Letts said,
didn’t dream that by giving this copyright to the corporation, which was his corporation that reflected his religion, that those who would come after him would use their corporate power to suppress his religion or to keep any prior practitioners of his religion … from making that book available on a continuous, freshly printed basis, I don’t believe the founder dreamed that.9
Scheibe argued that the wcg hadn’t suppressed or abandoned the work because they still had archival copies. Plus, there were some copies in libraries! Scheibe said, “[A]bandonment requires overt acts such as destroying the last copies of a work”—which, of course, is precisely what the wcg did with the 120,000 surplus copies it had in early 1988.
We bounced off the walls that day at our headquarters complex after receiving word that Judge Letts denied their request for a temporary restraining order. That first hearing emboldened my father—God had backed his leap of faith. He knew we might be in for a lengthy and bitter dispute. But after such an overwhelming victory that early in the case, he was all the more convinced that God would support our actions—as long as they pleased Him and we walked by faith.
Judge Letts set the preliminary injunction hearing for March 10.
Meeting the Attorneys
Two days after the ex parte hearing, Dennis Leap, my father and I flew to Los Angeles to meet our lawyers for the first time. Before entering their firm the afternoon of February 20, the three of us met to discuss how we might best explain our strategy to the attorneys. We also considered the immediate steps our church might take now that Judge Letts denied the wcg’s request for a temporary restraining order. For one, my father wondered if we should immediately start offering Mystery of the Ages on our television program. My dad also directed me to begin work on an ad campaign in Southern California newspapers. “Now that we have absorbed their initial blow,” he said, “we have to strike back.” He believed newspaper ads in their own backyard would help to expose their hypocrisy and lies.
After lunch, we met with Mark Helm and Ruth Fisher at the Los Angeles offices of Munger, Tolles & Olson. Kelly Klaus, in the San Francisco office, listened in over the phone. That afternoon, and the following day, the three of us explained the history of our work and its intimate association with the teachings of Mr. Armstrong. We told them about how the Tkaches had gotten control of the wcg and repudiated Mr. Armstrong’s teachings and disfellowshiped many of those who adhered to the founder’s body of beliefs.
The attorneys, in turn, familiarized us with a litigation road map. While the judge’s denial of the restraining order was indeed a victory, the war had only just begun. The stakes would be much higher at the March 10 hearing. Preliminary injunction hearings can go a long way toward deciding the outcome of a case, we learned.
After our meetings concluded on February 21, Mr. Helm contacted Scheibe to request discovery, a pre-trial procedure by which one side gains information held by the other. Within their complaint, the wcg claimed to own the copyright to Mystery of the Ages because at the time it was written, Mr. Armstrong was “an officer and employee of the wcg.”10 We intended to challenge that assertion by arguing that Mr. Armstrong was the one who raised up and established the church. Saying he was a wcg “employee” implied that some higher authority in the wcg “hired” him.
The “employee” issue was a critical point early on in the case because of how often we repeated Mr. Armstrong’s final instructions regarding Mystery of the Ages—to distribute it to the “largest audience possible.” In response to this, the wcg tried to show that what Mr. Armstrong said was irrelevant, legally speaking, because he was under the church’s control.
At his 1998 deposition, Ralph Helge admitted that while there was no written employment agreement between Mr. Armstrong and the church, it was “common knowledge” that he was an employee. When asked if there was any person in the wcg who controlled Mr. Armstrong’s work, Mr. Helge said the church’s board of directors had a “certain degree of control.” Later, Helge said the board even had the authority to fire Mr. Armstrong.11
Our attorney, Kelly Klaus, then reviewed a number of important statements made by Mr. Armstrong at a ministerial conference in 1981 (a transcript of which is printed in the March 6, 1981, Worldwide News). In his lecture, Mr. Armstrong explained that the church of God is a spiritual organism, but unincorporated. There were, however, a number of “support entities” in the church, mostly physical, that were incorporated, including the Worldwide Church of God, a California corporation. The members of the Worldwide Church of God Inc., Mr. Armstrong explained, “are the officers that sign the corporation papers.”12
At his deposition, we asked Mr. Helge about which entity exercised control over the other—the spiritual or the incorporated? Mr. Armstrong said the latter was “incorporated under myself.”13 What he meant by that, Mr. Helge testified, was that the incorporated entity was subordinate to the “spiritual entity”—but not to Mr. Armstrong.14
Fair enough. The wcg had always believed that the living, invisible, Jesus Christ headed the church. But we also believed that Christ works through physical men. And His human representative, prior to January 16, 1986, was Herbert W. Armstrong. If anyone understood that, it would have been Ralph Helge, since he was the one who helped Mr. Armstrong draw up the church’s bylaws and articles of association. Mr. Helge testified that the unincorporated association—the spiritual organism, keep in mind—basically didn’t have any temporal responsibilities. Regarding the corporate entity, he indicated that Mr. Armstrong did not have “absolute right to tell the board of directors to do this or that.”15
We then referred him to the church’s articles of association, which state that the “Church Authority” has control over the “ecclesiastical” and “temporal” affairs of the church. And what did it mean by “Church Authority”? Article 2.1 says it means the “power and authority vested in Herbert W. Armstrong and his duly authorized delegates,” which included the Advisory Council of Elders. Later, in article 5.2, it says, “The authority and power of Herbert W. Armstrong to unilaterally exercise all the powers of the Church over the ecclesiastical and temporal affairs of the church shall be absolute and unqualified.”16
That we were trying to convince Mr. Armstrong’s own legal adviser that the wcg’s government structure was hierarchical seemed absurd. Everyone in the wcg knew that! After reading the church’s articles of association during his deposition, Mr. Helge said, “I don’t think it’s proper to look at it and interpret it that he ran things like a despot.”17 Of course, that’s the exact opposite of what we were trying to say. Mr. Armstrong governed the church like a loving father—always seeking a multitude of counsel. But he did have final say—and since some of his last instructions to the church had to do with distributing Mystery of the Ages widely, his authority in the church was of special significance.
Ironically, Joseph Tkach Jr., Mr. Helge’s own boss at the time of his deposition, is the one who interpreted the church’s governance doctrine to mean that Mr. Armstrong was a despot. In his book, Tkach Jr. said Mr. Armstrong “was most definitely and absolutely in charge of our church”—so much so, he had earned the reputation from critics outside the church as being a “theological despot.”18 It is even more ironic that the “absolute authority” Tkach Jr. freely condemns in his book is the very means by which Tkach Sr. landed in the office of pastor general in 1986, not to mention Tkach Jr. in 1995. (The all-powerful “board” had no say in either appointment.) It’s also the means by which the Tkaches excommunicated thousands of wcg members who simply desired to adhere to the same teachings they had always been taught by Mr. Armstrong.
Early on in the court case, Ralph Helge portrayed Mr. Armstrong as just another church employee—hired or fired by the board. It then followed, that the church—or the board—had final say on this legal matter regarding Mystery of the Ages.
Outside of court, however, Tkach Jr. portrayed Mr. Armstrong as a corrupt, theological despot who wielded absolute power within the wcg.
Witnessing this duplicity up close in the early stages of the court case brought back painful memories of how the Tkaches forced their changes on the church back in the late 1980s. It didn’t take long before we realized we were going to have to live through much of that late 1980s history all over again.
In their discovery request, the wcg asked us for an accurate count of how many books had been distributed as well as the amount of donations the pcg received as a result of distribution. We wanted to complete this initial exchange of discovery by the end of the day on Monday, February 24, 1997, so we could meet our February 27 deadline for filing our opposition to their complaint.
The following week, on Tuesday, we had not yet received any documents from the other side. Mark again contacted them to remind them that our opposition was due in only a couple days. Scheibe said the wcg was having problems gathering the documents because much of it was tucked away in storage.
On Wednesday, the day before our opposition was due, we still hadn’t received documents from the wcg. Mr. Scheibe said they needed more time to locate the documents and asked if we would be amenable to delaying the briefing and hearing by one week, assuming it was fine with the judge. We agreed and later the judge pushed the hearing back to March 17, which also gave us another week to prepare our opposition brief. Scheibe said he would have discovery responses to us by the end of the week.
Two days later, toward the end of the day on Friday, Scheibe left Mark a voice mail that knocked our socks off. He said the wcg had filed a motion to dismiss the lawsuit. Just 18 days into the litigation, they had already given up! And we hadn’t even received any items of discovery—nor had we filed one single opposition brief in court.
The next day, at our weekly church service, pcg members applauded the news.
The following Monday, March 3, Mark Helm called the wcg’s attorney to make sure he understood Friday’s voice mail correctly. Scheibe confirmed that the California action had indeed been dismissed.
Later that day, at our headquarters offices in Edmond, Oklahoma, we were served papers by courier. The wcg filed a new complaint in Oklahoma. It was a stunning blow—although we weren’t necessarily shocked that the wcg would resort to manipulating the system.
In its new complaint, the wcg said it dismissed the action in California because it learned that the Philadelphia Church intended to contest the case on the basis that it should not have been filed there—a blatant fabrication. In actuality, at the February 18 hearing, Mark Helm only reserved the right to dispute personal jurisdiction. He had only been hired the day before, remember, and he hadn’t yet assembled all the facts of the case.
The wcg turned our reservation of rights into an attempt on our part to challenge jurisdiction.
But after the hearing, once Mark pressed Scheibe for discovery on the merits, it was abundantly clear that we intended to move forward and fight the action in California. Scheibe himself is the one who suggested we delay the brief filing by one week so that both sides might have more time to collect discovery. As it turned out, that one-week delay prevented us from ever filing our opposition on the merits of the case. That delay, brought on by Scheibe, gave the wcg another week to think about stuff they could make up.
The real reason they dismissed the action in California on February 28 and filed one in Oklahoma the next business day is because they were shopping for a judge who would support their position.
The Ad Campaign
Shifting venues enabled the wcg to beef up its argument since Judge Letts had made it clear that their case was weak. In the California filing, they said nothing about the wcg’s repudiation of Mr. Armstrong’s teachings. Their main thrust was that they owned the copyright and that, in itself, should prevent us from printing and distributing the book.
In the Oklahoma action, however, they were much more forthright about their turn away from Mr. Armstrong’s teachings. They admitted the church had “intentionally not reprinted the book” due to a modification in doctrine, but felt obligated to “protect” its copyright. They said that while the pcg is free to believe the book’s teachings, we could not go so far as to publish it. To do that, we would have to come up with our “own original expression of the ideas.”19 Furthermore, the Oklahoma complaint said,
Because of this change in belief, Worldwide Church suffers irreparable injury by Philadelphia Church’s unlawful reproduction and distribution of Mystery of the Ages because it does so with the purpose of perpetuating beliefs no longer followed by Worldwide Church.20
Ah yes! The real truth emerges. They told Judge Letts they suffered “irreparable damage” because we had “profited” from distributing the work (the donation “profit” was actually theirs, in other words) and because they had been “forced to incur attorneys’ fees.”21 Now their suffering stemmed from the fact that we were perpetuating beliefs and teachings they no longer agreed with! It was the closest they ever got in court to saying they wanted to suppress Mr. Armstrong’s teachings.
Taking that as our cue, we quickly went to work producing newspaper ads while our attorneys began working with an Oklahoma lawyer to answer the wcg’s latest complaint. On March 5, in a meeting with Dennis Leap and me, my father said he wanted us to look upon this second attack from the wcg as a “tremendous opportunity.” We have to regain the advantage by taking the offensive, he said. He explained that he felt the wcg’s biggest weakness was being exposed before the general public. It was before that audience that the wcg had bragged about the “unprecedented” transformation their church had undergone since Mr. Armstrong’s death. Our job, my dad said, was to show how this was actually one of the biggest betrayals in the history of religion. He felt like newspaper ads would be the easiest and quickest way to get the true story out there. He advised us to come up with a provocative sounding headline—something like, “Why are they desperately trying to keep you from reading Mystery of the Ages?”
My dad put pen to paper and worked up a rough draft of the copy while I started working on the ad design. Mr. Leap and I helped with some of the research for the ad. After we polished it off, we consulted our attorneys about the wording. It had to be just right.
Then, on Tuesday, March 18, our first newspaper ad appeared on page 14 of the front section of the Los Angeles Times under the headline, “Worldwide Church of God says: You can’t read this book!”22 Next to the headline was a picture of Mystery of the Ages. In the days that followed, the ad also appeared in several smaller papers in Southern California, as well as the Washington Post and Denver Post.
Using less than 1,000 words, we summarized the history of Tkach’s rejection of Mr. Armstrong’s teachings and how more than half of the wcg membership had been driven out of that church—many of them excommunicated. We also discussed the most significant details of the lawsuit. “Although Mr. Armstrong’s successors have seized his church and betrayed his ideals,” the ad read, “they should not be allowed to silence his voice.” It continued,
If the Worldwide Church of God no longer has any use for Mystery of the Ages, it should not be allowed to keep the book from those who do.
The Philadelphia Church and the Worldwide Church are in a battle over religious beliefs. Rather than try to persuade potential believers to adopt one of two competing approaches, the Worldwide Church wants to conceal one of them altogether. This can only be because it recognizes the power and clarity of Mr. Armstrong’s vision, and lacks confidence in the appeal of its own muddled and compromised approach.23
We wanted to expose their religious censorship in public, within their own community, and plug Mr. Armstrong’s wonderful book at the same time. As my dad told Mr. Leap and me in February, “An ad campaign will help us achieve our goal.” And did it ever. Several thousand people responded to our campaign by requesting Mystery of the Ages. In the weeks that followed, we produced two follow-up ads. Together, all three ads appeared in over a dozen newspapers.
But much more important than that, at least with respect to the litigation, is how the wcg reacted to the campaign. Our ads got right under their skin and put them on the defensive, as my father predicted they would. Mr. Helge contacted the newspapers we used in the Los Angeles basin, demanding retractions and even threatening litigation.
Their Christian Duty
At about the time our first ad appeared in the Los Angeles Times, Joe Tkach Jr. was putting the finishing touches on his new book, Transformed by Truth, to be released later that summer. Our March 18 ad prompted him to add this footnote on page 203 of his book:
In February 1997 we filed suit against the Philadelphia Church of God—one of our splinter groups headquartered in Edmund [sic], Oklahoma—to block the republication of Mystery of the Ages. The Worldwide Church of God still holds the copyright to this book, and we contend that no one else has the right to publish it. We feel it is our Christian duty to keep this book out of print, not because we recognize “the power and clarity of Mr. Armstrong’s vision” or because our church “lacks confidence in the appeal of its own muddled and compromised approach,” as an advertisement for the Philadelphia church claims, but because we believe Mr. Armstrong’s doctrinal errors are better left out of circulation.24
That one footnote was perhaps the wcg’s biggest blunder during the six-year lawsuit. In the Oklahoma complaint, remember, they said we caused them irreparable injury for perpetuating beliefs they no longer followed. Now we had a much stronger statement, and direct from their own pastor general, saying they had a “Christian duty” to suppress Mr. Armstrong’s written works! Our Los Angeles Times ad was just too nettlesome for Tkach Jr. to ignore.
The “Christian duty” statement put the wcg in a nearly indefensible position from the outset. How would they convince any judge or jury that they weren’t really using their copyright to suppress Mr. Armstrong’s writings when, in fact, their own leader said it was his “Christian duty” to keep the works out of print?
And it was all brought to the surface by one single newspaper ad. That is what provoked Tkach Jr. to spontaneously (and publicly) reveal his true motive for filing the lawsuit from the beginning. It wasn’t to protect what they considered to be a valuable asset, as we would hear later. Nor was it because they had big plans for Mystery of the Ages down the road—perhaps distributing the work again in some kind of annotated form. And it wasn’t because they were intent on making all of Mr. Armstrong’s works available through e-publishing for historical purposes and to accommodate the spiritual needs of our pcg membership.
Those were all lies that would resuscitate their case from time to time in the years that followed. But what killed their case from the beginning is when Tkach Jr., in a brief, angry reaction to a newspaper ad, sat in front of his computer and actually typed the truth. As absolute ruler in the wcg, he admitted he had a “Christian duty” to destroy Mr. Armstrong’s written works.