“Darwin’s Dilemma” Case: Nightmare Settlement!

This is a disturbing story about what we’ve been calling the Darwin’s Dilemma Exhibition Case. The actual case name is American Freedom Alliance v. California Science Center, California Science Center Foundation, Jeffrey Rudolph, et al. It’s sometimes abbreviated AFA v. CSC.

Our last post on this case was “Darwin’s Dilemma” Case: It’s Settled!

This is — or was — a lawsuit filed by the American Freedom Alliance (AFA), claiming that the California Science Center (CSC or “Science Center”) 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 includes appearances by Richard von Sternberg, Jonathan Wells, and Stephen Meyer, all “senior fellows” with the Discovery Institute (the “Discoveroids”), claiming that the Cambrian “explosion” is evidence of intelligent design.

The National Center for Science Education (NCSE) has many of the court pleadings available online. See: American Freedom Alliance v. California Science Center et al.

We were pleased to learn of the settlement, but we were left with an uneasy feeling about the situation. In the three weeks since then, there have been no news stories, no press releases by the Science Center, and nothing from the creationists either. That suggested to us that the settlement involved some kind of confidentiality agreement.

We were also concerned that Court was going to “retain jurisdiction over enforcement of the settlement agreement.” The usual settlement involves the payment of money and the exchange of releases. When that’s done the settlement agreement is filed with the court and there’s nothing left to supervise or enforce. We even speculated that the Science Center might have to exhibit the creationist film as part of the settlement. But we didn’t know, and the situation was creepy.

It appears that our concerns were justified — according to the neo-theocrats at the Discovery Institute‘s creationist public relations and lobbying operation, the Center for Science and Culture (a/k/a the Discoveroids, a/k/a the cdesign proponentsists).

The Discoveroids’ newest article is California Science Center Pays $110,000 to Settle Intelligent Design Discrimination Lawsuit. Here are some excerpts, with bold font added by us:

The state-run California Science Center (CSC) has paid $110,000 to settle a lawsuit by American Freedom Alliance (AFA) against CSC for violating AFA’s First Amendment free speech rights to advocate intelligent design (ID). As part of the settlement, the CSC also has invited AFA to present the ID event it previously cancelled.

M’god! That’s our worst-case scenario! Let’s read on:

“This is an historic victory for the ID movement,” said Casey Luskin, an attorney and policy analyst with Discovery Institute’s Center for Science & Culture. “The First Amendment forbids government preference for one viewpoint over another, yet evidence disclosed in this case shows the CSC, Smithsonian Institution, and LA County Museum of Natural History attempted to stifle dissent from Darwinism. The result was illegal state-sponsored suppression of protected speech.”

There’s more to the Discoveroid article — click over there and read it if you like. Here’s one last excerpt in which the Discoveroids quote one of their people who, exhibiting the elegance and grace we’ve come to expect from creationists, says:

This case warns bullies in the Darwin Lobby there will be consequences for trying to suppress free speech on evolution.

That’s all we’ve got to say on this for the moment.

Addendum: Now they’re cranking out the press releases: California Science Center Pays $110,000 to Settle Intelligent Design Discrimination Lawsuit.

2nd Addendum: Now Chappy chimes in and characterizes the out-of-court settlement as a First Amendment Victory in California. He says: “The position of the Left is that conservative positions — especially on cultural issues — do not deserve to be heard on their own terms.” So now creationism vs. science is a left-wing v. right wing issue. This is tragic.

3d Addendum: News stories are starting to appear. ABC News, in CA Science Center Pays $110,000 Over Canceled Film says:

Under terms of the settlement, reached last month, neither side admitted wrongdoing and the alliance agreed to decline the center’s invitation to screen the film.

“Even though the AFA has no interest in returning to the IMAX theater, they at least feel by being invited back they have been vindicated. The invitation represents a form of apology,” said attorney William J. Becker Jr., who represented the alliance.

Update and retraction: See “Darwin’s Dilemma” Case: The Full Story.

Copyright © 2011. The Sensuous Curmudgeon. All rights reserved.

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24 responses to ““Darwin’s Dilemma” Case: Nightmare Settlement!

  1. Let’s wait for the other shoe to drop. I don’t trust the DI spin machine.

  2. This wasn’t an arbitration, but a settlement? Of course the DI will spin it their way, but it may have been a case where the CSC opted to pay a sum rather than spend more money going through a trial. With their deeper pockets, the AFA may have convinced the CSC that they would take them to trial and continue the case as long as it took.

    From what we’ve seen of the documents, the CSC appeared to have by far the better case. Very surprising outcome. Of course, in law, being right doesn’t always mean being successful.

  3. Ed says:

    From what we’ve seen of the documents, the CSC appeared to have by far the better case. Very surprising outcome.

    The only thing that makes any sense is that the CSC settled for what is peanuts to them and avoided a trial, followed by the inevitable appeals, and maybe some crazed judge actually making a ruling in favor of the creationists. This is just a settlement, so it has zero value as a precedent — although the Discoveroids are crowing otherwise.

    As for the CSC’s agreeing to display the silly film, so what? Hey — they can have a whole week set aside for such stuff. They can call it “Bigfoot Week” and have films about UFOs, Nostradamus, creationism, etc. Why not? The so-called History Channel runs that junk all the time.

  4. I don’t see any question that the CSC had a strong case. But this lawsuit had nothing to do with the case merits. It had to do with an unreasonable plaintiff willing to pour unreasonable amounts of money into an unreasonable case.

    I say double-down on all of it. I say that the DI gets shut out every chance we get. Stretch their resources to the breaking point.

  5. rubble says:

    I say double-down on all of it. I say that the DI gets shut out every chance we get. Stretch their resources to the breaking point.

    That’s one of the advantages to my “Bigfoot Week” solution. Whenever some whacked-out group wants to rent their theater, the CSC can reply: “Sure, we’ll schedule you for Bigfoot Week.” If the creationists object to the “insulting” scheduling assignment, then let’s have a trial on that issue.

  6. This case warns bullies in the Darwin Lobby there will be consequences for trying to suppress free speech on evolution.

    This ought to warn bullies in the Round Earth Lobby and the Theory of Gravity Lobby not to get “uppity.”

  7. Notice how the DI makes a point of saying that they were “dragged into” the case. Maybe the principles signed a confidentiality agreement, which the DI, since they were not technically a party, did not have to honor. ??

    Good point that this has zero legal value, just as the other cases mentioned by the DI.

  8. Ed says:

    Maybe the principles signed a confidentiality agreement, which the DI, since they were not technically a party, did not have to honor. ??

    I’ve been wondering that. However, I note that the Discoveroid post and their press release came out early this morning. The Discoveroids, being in Seattle, usually don’t start their blog posting until later in the day. That means this stuff was prepared earlier and scheduled to appear today. That looks like there was some kind of blackout period everyone agreed to, which expired today.

  9. I said before that the CSC could be in trouble on this:

    http://dododreams.blogspot.com/2010/08/un-news.html

    The problem was that the CSC rented out its facilities to all sorts of activities, up to and including weddings, corporate meetings and political meetings. Once a goverment agency does that, it can’t engage in “viewpoint discrimiation.” The CSC’s excuse for the cancellation was that the AFA broke it’s contract by not clearing all advertising of the event with the CSC. However, the offending ad was, in fact, issued by the Discovery Institute, which was not a party to the contract.

    In essence, the IDers have established that they, like any religious organization, cannot be denied access to government facilities open to the public in general … which we’ve know since the case of Lamb’s Chapel v. Center Moriches:

    http://www.oyez.org/cases/1990-1999/1992/1992_91_2024

  10. John Pieret says:

    However, the offending ad was, in fact, issued by the Discovery Institute, which was not a party to the contract.

    True, but the CSC did initially contract to exhibit the film. The Discoveroids were coordinating with the outfit that rented the theater, and acted with their knowledge and approval when the press release was issued. That was the issue as to whether the contract was breached. “Viewpoint discrimination” was a phony issue. It was a simple breach of contract case.

  11. “The Discoveroids were coordinating with the outfit that rented the theater, and acted with their knowledge and approval when the press release was issued.”

    Was there *evidence* of that? Suspicions, no matter how justified, don’t count in court. In any case, it would fall under the category in the law known as “who cares?” If it is a contract case, then you have to show that the party to the contract breached its terms or, at least, some more direct evidence that the AFA was the real actor, such as paying for the DI’s ads/pr releases. If our suspicions are right, the DI is too smart for that. Without the contract defense, it was pretty clear that the CSC was upset at the *content* of the program … which is not a permissible criteria.

  12. John Pieret asks:

    Was there *evidence* of that? Suspicions, no matter how justified, don’t count in court. In any case

    Yeah, they had email back and forth. There wasn’t much doubt that it happened. It’s all in the pleadings, and I’ve posted about it. I thought the CSC has a strong case.

  13. John, there are e-mails between the DI and the AFA that document the coordinating efforts.

  14. There nothing wrong with the producer of a film and the party showing it coordinating publicity for it and it doesn’t necessarily make them liable for each others contracts. Could the CSC have sued the DI for its rental fee if the AFA failed to pay, based solely on their coordinating the publicity? Not by any contract law I’m familiar with. The emails I found in your earlier post didn’t mention the DI’s insinuation that the Smithsonian was involved (as far as I could see with a quick scan), which was the CSC’s real objection. The CSC would have a hard time standing on a bare failure to allow the CSC to review all press releases, especially in the face of the CSC’s own emails indicating their objection to the programs “contents*, unless they could point to something objectionable in the publicity. The only thing I’ve seen is the attempt to trade in on the Smithsonian’s reputation and, if the CSC can’t lay that at the AFA’s doorstep, it’s in trouble. The best indication of the CSC’s lawyers’ opinion on the case is (if true) the $110,000 settlement which is definitely *not* “nuisance value” money.

  15. The AFA signed a contract requiring them to OK all press releases with the CSC. The AFA corresponded with the DI concerning press releases; the AFA was aware of the content of those releases, and the AFA gave their blessing without getting CSC’s OK. It doesn’t matter that the DI issued the press release; the issue is that it was essentially an AFA press release issued by the DI, with the AFA’s blessing, reasonably interpreted as the DI acting as the AFA’s press release agent.

  16. The figure of $110,000 (if accurate) represents a reasonable estimate for legal fees for this case.

  17. “… the AFA was aware of the content of those releases …”

    Shrug. That’s what you say. I didn’t see evidence to that effect in the emails. It takes more to become responsible for another party’s actions than merely coordinating publicity. This is the law we’re talking about, not your sense of “justice.”

    “The figure of $110,000 (if accurate) represents a reasonable estimate for legal fees for this case.”

    Well, there’s a couple of variables. If the CSC was being represented by an insurance company, the legal fees should be nowheres near $100,000 based on what I’ve seen here. And, contrary to what you may think, based on long experience representing insureds for carriers, they are not so quick to throw that much money on a case unless they thought it was a loser. If the CSC wasn’t insured and was paying some high-priced firm, then the $110,000 might be what it would cost them but, on the other hand, they would still have a strong incentive to defend the case if they thought they had a good chance, because this is the sort of thing that can get politicians on their back about state funding and that could scare off private contributions.

    The notion that this is a nuisance payment is more wishful thinking than anything else.

  18. John Pieret says:

    The notion that this is a nuisance payment is more wishful thinking than anything else.

    The CSC is a state operation. They were defended by the attorney general’s office. Fees weren’t a consideration, really. Maybe manpower was, but not fees. This settlement could be justified, maybe, as a way to prevent the inevitable appeal if the creationists lost. No one (except creationists) wants to see court decisions on this “viewpoint discrimination” stuff.

  19. They were defended by the attorney general’s office.

    I should have checked that. Yes, that makes legal fees irrelevant and usually courts give greater leeway to government attorneys in meeting deadlines and choosing trial dates and the like so manpower shouldn’t have been a great consideration.

    Of course, the AFA was seeking its own legal fees as part of tis damages under the same Federal law that allowed the plaintiffs in the Dover case to collect $1 million from the school board.

    This settlement could be justified, maybe, as a way to prevent the inevitable appeal if the creationists lost.

    Yeah, but it’s still a function of what you think your chances of winning on appeal is when the government is footing the bill.

  20. I just added this as an addendum to the post:

    Now Chappy chimes in and characterizes the out-of-court settlement as a First Amendment Victory in California. He says: “The position of the Left is that conservative positions — especially on cultural issues — do not deserve to be heard on their own terms.” So now creationism vs. science is a left-wing v. right wing issue. This is tragic.

  21. So now creationism vs. science is a left-wing v. right wing issue.

    Like I said they’re going to try to rally their base. The big tent has failed.

  22. Gabriel Hanna says: Like I said they’re going to try to rally their base.”

    It’s a dream come true for left-wing journalists. Conservative (and therefore Republican) = stupid. Thanks, Discoveroids.

  23. @SC:Thanks, Discoveroids.

    I think that train pulled away from the station long ago… but if there are any journalists left who don’t ALREADY think that conservative = Republican = stupid, I doubt this will sway those tow or three who remain.

  24. I added another addendum to the post for this, which puts a whole new spin on the settlement:

    ABC News, in CA Science Center Pays $110,000 Over Canceled Film says:

    Under terms of the settlement, reached last month, neither side admitted wrongdoing and the alliance agreed to decline the center’s invitation to screen the film.

    “Even though the AFA has no interest in returning to the IMAX theater, they at least feel by being invited back they have been vindicated. The invitation represents a form of apology,” said attorney William J. Becker Jr., who represented the alliance.