Magistrate Judge Unseals Documents in Falun Gong Case

New York Law Journal/June 10, 2016

By Mark Hamblett

Members of the Falun Gong spiritual movement suing over what they say is a campaign of violence and intimidation in Queens have lost their bid to have documents in the case kept
under seal.

Eastern District Magistrate Judge Vera Scanlon said she would not allow the continued sealing of four documents in the case of Jingrong v. Chinese Anti-Cult World Alliance, 15cv01046.

The case charges that Falun Gong, which has long alleged suppression and persecution in China, has been subject to "mob violence and intimidation" at sites in Flushing where it runs a spiritual center and distributes leaflets and flyers protesting the group's treatment by the Chinese government.

The Falun Gong members claim that at the instigation of the Chinese government, its members have been kicked and beaten by members of the Chinese Anti-Cult World Alliance, which also maintains a booth on Main Street where it hands out anti-Falun
Gong materials.

The lawsuit, filed in Brooklyn federal court, said the alliance was incorporated in 2008 with the mission of "exposing Falun Gong as an evil and dangerous threats to humanity and to society"—the same kind of language used by the Chinese government in targeting the group.

The plaintiffs wanted to keep sealed letter motions filed in support of, and in opposition to, their prior motions to quash the deposition of Falun Gong founder Li Hongzhi.

Scanlon determined that the letter motions were judicial documents subject to the presumption of public access.

"Although these letter briefs cannot be characterized as dispositive in nature, such as summary judgment motion briefs, they nevertheless do relate to a motion that, had it been granted, could ultimately [a]ffect the viability of some of defendants' defenses," Scanlon wrote.

The plaintiffs argued in their papers that they have "strong reason" to believe the Chinese government will use as propaganda the effort to subpoena Li and suggest that Li is being "hauled into an American court as a criminal" to answer for his role in founding the group.

They also contended that the propaganda would "delegitimiz[e] the religious beliefs and adherents of Falun Gong" and thus discourages practitioners from seeking "the protection of the court."

But Scanlon said these arguments don't come close to overcoming the strong presumption of public access. 

First, she said, a generalized concern of adverse publicity does not justify continued sealing and, second, the plaintiffs' "sweeping claims of resultant harm to Falun Gong practitioners are, at best, speculative." The judge noted that the premise of the complaint is that the Chinese Communist Party spreads anti-Falun Gong propaganda with the suppression of the group as its goal.

"If the documents at issue here require confidentiality, it [is] unclear to the court why every document in this case would not likewise require confidentiality, as they could all be used in the same manner," she said. "That cannot be the case."

She agreed with the defense that the Falun Gong members "cannot use this lawsuit as both a sword and shield."

"Plaintiffs have chosen to file a federal lawsuit claiming a wideranging and crosscontinent/crossocean conspiracy aimed at Falun Gong practitioners, thereby publicly placing at issue the religious practice and, potentially, information related to its founder, Mr. Li," she said.

Scanlon said both sides in the lawsuit are considering using theologians or religious experts to determine "whether Falun Gong is a religion, and, by corollary, whether its practitioners are entitled to First and Fourteenth amendment protections."

Terri Marsh of the Human Rights Law Foundation represents the plaintiffs.

"It's just a very sensitive matter; it has nothing to do with access to public records," Marsh said Wednesday. "I respect access to public records, it's just that, in my view, the proposed deposition is completely irrelevant to all of the claims in the case and is being used to harass."

Marsh said the lawsuit is moving forward after Scanlon issued a report and recommendation in January, adopted by Eastern District Judge Sandra Townes in March, to deny the defense motion to dismiss.

The defendants are represented by Tom Fini of Catafago Fini, who called the case a "manufactured lawsuit" meant to stop his clients from calling Falun Gong a cult. He said he and his client "emphatically deny they are taking direction from the Chinese government and deny having engaged in any assaults."

"This lawsuit represents a clear attempt to silence my clients rights to free expression—the Falun Gong and its leader have advanced many irrational and dangerous views which my clients reasonably disagree with," Fini said. "They tried to have the records sealed because they don't want those views to become public."

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