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West Virginia Law Review

Document Type

Article

Abstract

We begin with the proposition that the right of freedom of thought protected by the First Amendment against State action includes both the right to speak freely and the right to refrain from speaking at all. A system which secures the right to proselytize religious, political and ideological causes must also guarantee the concomitant right to decline to foster such concepts. The right to speak and the right to refrain from speaking are complementary components of the broader concept of 'individual freedom of mind.' Anguished parents and sympathetic judges; concerned attorneys and psychologists; reality-inducing therapists, police officers and adult or minor conservatees and wards: All play integral roles in federal civil rights and state tort religious cult litigation. Characteristically, such actions are brought in the name of the ward or conservatee who was the subject of a temporary guardianship or conservatorship, empowering a guardian or conservator to have his or her child counseled by psychiatrists, psychologists or lay therapists, and issued by a court convinced that the child had become a victim of a form of mind control manifested by abrupt personality changes, radical behavioral modification, unexplained divesting of assets, and general physical debilitation. The counseling, often referred to as deprogramming, is either interrupted or unsuccessfully completed and the ward or conservatee returns to the cult. Soon after the ward's return, federal litigation is commenced, with jurisdiction premised upon both diversity and federal question. Causes are pleaded pursuant to 42 U.S.C. §§ 1983, 1985(2), 1985(3), 1988, and the various state common law torts of false imprisonment, false arrest, assault, battery and intentional infliction of emotional harm. Due to its controversial nature and its attraction of many commentators to investigate the first amendment questions surrounding the use of this therapy, deprogramming has been analyzed in various articles, notes and comments. However, they have only cursorily examined the procedural and substantive predicates to proving claims under the federal Civil Rights Statutes and the relevant state common law torts. While scholarly, these articles have either analyzed deprogramming in conjunction with brainwashing or totalism, investigated deprogramming as a method of conversion, analogized cultist beliefs with the first amendment religious beliefs or have attempted to formulate a theory of free exercise of religion that would apply to beliefs of religious cult members. Drawing on the perspective and background of research into the legislative history of the Civil Rights Act in which 42 U.S.C. § 1983 and § 1985 are embodied and having handled numerous federal trial and appellate cases that have yielded opinions delimiting the standards by which religious cult claims must be proved and pleaded, the author will concentrate on recent developments in the Supreme Court of the United States and the federal district and appellate courts. This article will explore the requirements of stating a cause under 42 U.S.C. § 1983 and § 1985, the test of pleading and proving a conspiracy under these sections, defenses available to the practitioner who must counter claims of first amendment violations and emotional injury, and will conclude with an overview of the present state of the law surrounding religious cult litigation and the civil rights damages available in such cases.

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