Can Family Radio be sued for Fraud?

May 22nd, 2011

My post about the Rapture (which did not arrive yesterday) generated quit a buzz, and received a lot of thoughtful comments. However, that post was purely about beliefs and faith, and not legal doctrine. Now, with May 21 come and gone, I’m interested in some of the legal issues.

Howard Friedman at the Religion Clause reports that some contributors to Camping and Family Radio (which has assets over $120 million) are seeking to have their donations returned.

Michael Dorf considers whether those that ran the “We’ll take care of your pets after rapture” service can be sued for fraud.

Could the proprietors of a Rapture pet insurance plan be prosecuted for fraud?  The leading Supreme Court case, United States v. Ballard, decided in 1944, appears to make the answer turn on the sincerity of the beliefs of the proprietors.  At the very least, Ballard forbids prosecution for fraud of those who sincerely believe in the truth of the religious claims they make.  That principle applies here.  In every jurisdiction with which I’m familiar, fraud is not a strict liability offense; it requires mens rea–the intent to take something of value in exchange for something dishonestly represented.  Rapture-believing Christians who sell Rapture pet insurance are taking something of value, but they are doing so honestly.

In Ballard, Justice Jackson, joined by Justice Frankfurter, would have gone further to say that even insincere peddlers of religious information, goods, and services should be protected because of the difficulty of separating inquiries into sincerity and inquiries into truth.  (Jackson made very effective use of observations by William James about the nature of religious belief.)

This elegant quote Dorf excerpts from Justice Jackson is apt for the rapt(ure).

The chief wrong which false prophets do to their following is not financial. The collections aggregate a tempting total, but individual payments are not ruinous. I doubt if the vigilance of the law is equal to making money stick by over-credulous people. But the real harm is on the mental and spiritual plane. There are those who hunger and thirst after higher values which they feel wanting in their humdrum lives. They live in mental confusion or moral anarchy and seek vaguely for truth and beauty and moral support. When they are deluded and then disillusioned, cynicism and confusion follow. The wrong of these things, as I see it, is not in the money the victims part with half so much as in the mental and spiritual poison they get. But that is precisely the thing the Constitution put beyond the reach of the prosecutor, for the price of freedom of religion or of speech or of the press is that we must put up with, and even pay for, a good deal of rubbish.