“Darwin’s Dilemma” Case: 03 Sep ’10 Update

THIS will be a non-technical update to what we’ve been calling the “Darwin’s Dilemma Exhibition Case.” The next few indented paragraphs provide background information, which most of you can skip:

A lawsuit filed by the American Freedom Alliance (AFA) charges that the California Science Center (CSC) violated both the First Amendment and a contract to rent its theater when it canceled a screening of Darwin’s Dilemma. The AFA is an outfit promoting “the controversy” about evolution — in the interest of what they call “academic freedom.” The film they wanted to show is being heavily hyped by the Discoveroids. The theater owner getting sued is the California Science Center, which canceled a contract for showing the film, alleging that a Discoveroid press release violated a contract clause requiring their prior approval of all promotional materials.

The AFA alleges that the contract violation was a “false pretext” for cancellation of the screening contract. It’s really discrimination and a violation of the First Amendment, thus a violation of the AFA’s constitutional rights. The National Center for Science Education (NCSE) has all the court pleadings available online. See: American Freedom Alliance v. California Science Center et al.

Our last post on this topic was Discovery Institute Finds “Viewpoint Discrimination”. There, we discussed the results of the Science Center’s turning documents over to the Discovery Institute. The documents were about Science Center’s canceling the film’s screening. Casey Luskin posted what were allegedly quotes from some emails, about which he said: “they reveal striking evidence of CSC’s viewpoint discrimination against intelligent design.”

That was a little more than two weeks ago. What’s happened since then? The news is that the plaintiff — AFA, the party alleging that its exhibition contract was breached — has filed a Third Amended Complaint. It’s archived at the NCSE site here: Third Amended Complaint. It’s a 34-page pdf file, but the pleading ends on page 25. After that it’s signatures, exhibits (e.g., the film exhibition agreement) and a certificate of service.

What was it that motivated the plaintiff to file a third amended complaint? To be candid with you, dear reader, it’s the defense lawyers whose job it is to review this turgid prose line-by-line on behalf of their client, the California Science Center. Your Curmudgeon is but a humble blogger. We could pour over these complaints, comparing them side-by-side to see what’s new in each version, but we won’t. Instead, we’ll give the latest version a quick glance to see if anything jumps out at us.

It begins — as all complaints do — by identifying the parties, and then there’s a recitation of the alleged facts — including the agreement to exhibit the film “Darwin’s Dilemma: The Mystery of the Cambrian Fossil Record.” They say that the film includes appearances by Richard von Sternberg, Jonathan Wells, and Stephen Meyer, all “senior fellows” with the Discovery Institute, discussing that the Cambrian “explosion” is evidence of intelligent design. Additionally, David Berlinski (another “senior fellow”) along with Wells were scheduled to conduct a discussion session after the showing of the film.

In spite of their heavy involvement in the film and in the exhibition event, the complaint alleges that the Discovery Institute didn’t produce the film and wasn’t a party to the exhibition agreement. This is an important issue.

Then the complaint talks about the all-important notices the Discovery Institute published about the film’s showing. Those notices were the basis for the Science Center’s cancellation of the event on the grounds that they were supposed to see and approve all publicity material. That brings us through paragraph 16 on page 5 of the complaint. Isn’t this fun?

Then comes what we assume is the new material. The complaint talks about emails sent by employees of the Science Center discussing — with some alarm — that their institution was showing a creationist film. We assume this is the material that was discovered recently, about which Casey had written a couple of weeks ago. Presumably this strengthens the plaintiff’s claim that the unauthorized publicity releases sent out by the Discovery Institute were merely a pretext for canceling the event, while the real reason was “viewpoint discrimination” and all that other constitutional stuff.

After the fact allegations, the complaint recites the technically-worded legal claims: breach of contract, violation of free speech rights in the Constitution, violation of the equal protection clause, etc.

Essentially, it’s the same set of allegations and legal claims as before (probably tweaked a bit), but this time around the “discrimination” allegations are fattened up by the inclusion of the newly-discovered emails. That seems to be the reason for this latest version of the complaint, but it’s possible that in our haste we’ve missed something else that’s new.

So where is all of this going? That depends. There’s an order setting the trial date for 13 June 2011, so we may be living with this mess for quite some time. But that same order sends the parties to mediation, with a post-mediation conference set for 25 October 2010 — less than two months from now. The case could get settled during mediation, as that’s the purpose of the procedure. A later order sets the post-mediation conference for 29 October 2010. Anyway, mediation is coming up and the case could come to an early end.

What do we make of it? It doesn’t matter what we think, but we’ll tell you anyway. We think all that “viewpoint discrimination” stuff is irrelevant — at least until the case gets to the appellate level. There’s really only one issue that matters during the mediation process. The mediator might get this thing settled if the parties treat their dispute as a contract case; but nothing will get resolved at this level if the creationists play the role of victims in a civil rights case.

If the unauthorized publicity sent out by the Discovery Institute gave the Science Center grounds to cancel the contract, that should be the end of it. Paragraph 19 of the latest complaint (on page 6) describes the notice of cancellation the Science Center sent, alleging a violation of the requirement to “submit all promotional materials” to the Science Center for “review and approval prior to printing or broadcast.” There’s one issue here: Did the Science Center do what the contract permitted it to do?

The “Promotional Materials” clause is on page 4 of the “Event Policies and Procedures” attached to the contract, but for some reason it’s missing from our copy of the latest complaint, where it ought to be right after page 31 of that pdf file. You can see it at the end of the First Amended Complaint, near the top of page 33 of that pdf file. It says:

PROMOTIONAL MATERIALS: It is required that the Event Service Office approve, for technical and factual accuracy, all promotional materials mentioning the California Science Center produced for your event (including invitations, programs, press releases, etc.) prior to printing or broadcast. Please allow sufficient time for this approval.

The notices published by the Discovery Institute didn’t comply with that provision. But did they breach the contract? The complaint (at least the latest version) alleges that the Discovery Institute — despite the presence of their people in the film and in the discussion period scheduled after the film — wasn’t a party to the contract; and besides, there wasn’t any harm done to the Science Center because those publicity notices were factually accurate.

So the issue is: Was the contract breached by the admittedly unauthorized but allegedly accurate notices issued by a deeply involved but allegedly independent party? A related issue might be whether, given the fact that personnel of the Discovery Institute appear in the film and were also scheduled to conduct a live discussion at the film’s presentation, would the public perceive their notices as being officially connected to the Science Center’s event? Another related issue is whether the Discovery Institute was working so closely with the AFA (the plaintiff) that their publicity notices were issued with the AFA’s knowledge and tacit consent. In our humble opinion, the case hinges on these things and little else. A breach of contract (if such existed here) can’t be excused because the party at fault behaves like a drama queen and says: “Yes, but you never loved me!”

We think it doesn’t matter if the Science Center was delighted to cancel the exhibition event, nor does it matter why they were delighted. If they had grounds to cancel the contract, then they acted properly and there’s no case against them. If they had no legitimate grounds to cancel, then they should lose and pay up. There are no vast constitutional issues to be decided here. That’s how we see it. But it’s not up to us.

Update: See “Darwin’s Dilemma” Case: Blood in the Water?

Copyright © 2010. The Sensuous Curmudgeon. All rights reserved.

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4 responses to ““Darwin’s Dilemma” Case: 03 Sep ’10 Update

  1. I recall seeing an email exchange (I haven’t looked through THIS set of documents, though) between the AFA and the Discovery Inst. in which they discuss the contract and if it had been signed, etc.

    The AFA guy then says something like “go ahead and send out your press releases.” The DI guy responds with, “hope the contract is solid because when these go out the s&*T’s going to hit the fan.”

    IANAL, however, my opinion is that by telling the DI to “do it” the AFA was authorizing publicity they had not run by the CSC, and for obvious reasons. Both parties, AFA and DI, knew the PR’s were inflammatory, but they did it anyway. We’re not talking Little Innocents here. These are sneaky people doing sneaky things, typical of the DI. They do hate getting caught in the act!

  2. We think it doesn’t matter if the Science Center was delighted to cancel the exhibition event, nor does it matter why they were delighted. If they had grounds to cancel the contract, then they acted properly and there’s no case against them. If they had no legitimate grounds to cancel, then they should lose and pay up. There are no vast constitutional issues to be decided here. That’s how we see it. But it’s not up to us.

    No, it isn’t, and the whole point of the lawsuit is to turn it into a civil rights issue–that’s what DI is FOR. That’s why they have money and lawyers. If showing the movie was the point, they could show it in hundreds of theaters with the money they are spending here.

    They’re just trying to get some judge somewhere to say that you have a Constitutional right to learn about creationism on the public dime. Given that no one these days knows what a judge will do, they can win eventually if their money and support holds out. Which it might not.

  3. Gabriel Hanna says:

    … the whole point of the lawsuit is to turn it into a civil rights issue …

    Of course! I don’t expect this thing to get settled.

  4. Interestingly because of all this, the DI had to admit under oath in a court of law that ID/creation is religion and has been ruled so. That would make Casey Luskin a big fat a liar, again.
    Casey Luskin also lied when he said the CSC was looking to cancel before the breach of contract. That is not what the time line shows.
    I think you are going to see a lot of emails between the DI and AFA showing how they worked closely together to manipulate the situation. This is where they will lose in court.
    What a shame that the CSC has to spent so much time and money defending themselves from such Bums