What is the difference between "freedom of speech" vs. "free exercise"?

If she has written items that constitute breaches of the contract - she will be sanctioned by the amount specified in the contract and presumably the cofs will be free to enact collecting activities using the whole gamut from garnishment to lien and ultimately bankruptcy.

If she refuses to shut up? Then it's gag orders and failure to follow those becomes contempt and that moves into a whole other realm. Once she starts defying the court rather than the cofs then imprisonment becomes a very real threat.

But as I said way back - the cofs is not suing her to put the genie back in the bottle. They are suing her to ruin her.

It does not matter to the cofs if they win or ultimately lose - the very act of nit picking through every line of what she wrote is going to take many many hours of very expensive attorney time. She will not be able to get an attorney for this on a contingency basis because she is the one being sued. As she has claimed to be a very successful businesswoman and she also received $50 K I doubt that she will get much traction (yet) for a pro bono lawyer.

So all the cofs has to do is to hammer away at every line of her email and try to prove that one or more points she states actually breach her contract. She cannot afford to lose a single argument. And she is going to pay an enormous amount of money.

I largely agree with this and your earlier take, and wouldn't be at all surprised to see the case roll out as you predict, but I think there's a legitimate question of whether she actually violated the NDA. After rereading her email against the NDA and the lawsuit, I get the sense that Cook wrote the email with the NDA in mind and, adopting a narrow reading of the NDA, attempted to not violate it. If the NDA is read broadly, and a court adopts the broadest meaning of "disparage" then it'll probably be found that she violated it. Getting there will likely be an excruciating, line-by-line assessment, and I don't think anyone can say for certain how it'll come out. It's close.

Also, there are things in the agreement that are standard, and then there are things that raise eyebrows and suggest perhaps an argument for unconscionability. One of them is the highly unconventional non-mutual arbitration clause. If Cook/Baumgarten have a dispute arising from the agreement, they're required to seek redress by "binding ecclesiastical arbitration", meaning that if they have a problem with Scientology, a Scientology IJC will decide the matter. Sound fair? Even the drafter of the NDA realized how ridiculous that is, and provided a second solution (a legitimate neutral arbitrator) if Cook can't resolve the matter in "ecclesiastical arbitration" (you think?). And Scientology, of course, isn't bound by arbitration, they can just go to court. The point is that an argument could be made that such a one-sided clause renders the NDA invalid.

To address a point I keep seeing, yes, you can sell your free speech rights, they are waivable, and if Cook's case relies on that argument, she'll lose. Which is one reason I suggested the affirmative defense that this is a non-justiciable religious dispute, and not a contract dispute. If successful, the technical inquiry of whether Cook/Baumgartner violated their NDAs wouldn't matter. Up until she sent the email, Cook considered herself a Scientologist in good standing, as did Scientology (unless I'm mistaken), which may distinguish this matter from typical NDAs where the parties sever their relationship for good. So not only is the content of the email largely "religious", but the nature of the parties' relationship at the time remained Church -> Parishioner; not Church -> Ex-Church-Employee. If viewed through this lens, the NDA could be read restrictively to only prohibit Cook from disclosing privileged and confidential information learned in her capacity as a church officer, and permit her to continue to voice her concerns on religious matters.

The religion sword cuts both ways, and at some point Independents are going to have to use it against Scientology. This seems like a pretty good opportunity.

Jeffrey explained that when Scientology filed its lawsuit, it requested, and was granted, a temporary restraining order. "They're only good for 14 days," he says, "so they're really easy to get."

The TRO runs out next week, and the next step in the process is for there to be a hearing to see if the same restrictions on Cook will be continued in a temporary injunction, which could last the duration of the case.

In other words, Cook could simply wait a few more days for the TRO to expire, and then really begin to fight the case. Instead, as a measure of how anxious she is to take on the church in this matter, she filed a motion yesterday to dissolve the TRO. That's what will be discussed in a hearing tomorrow morning.

"What we've done is rather than wait around, rather than wait until next Thursday, there are so many problems with the restraining order, we're asking that it be dissolved. We're able to do that on only two days notice," Jeffrey says. "We'll argue that they didn't follow the law in getting this TRO and that they didn't follow the rules for any kind of injunctive relief."

Jeffrey explained that the TRO is stunningly broad. "It prohibits her from going and getting a lawyer and defending herself in the lawsuit. It's that broad. She's barred from talking to anyone, even her husband. That on its face is completely inappropriate," he says.

Also, he points out, the church has not explained how it is being harmed by Cook's actions so far, which amounts to an e-mail sent to her fellow church members that complained that her religion had gotten away from its underlying principles.

"The church has an obligation to show what is the irreparable harm that will occur if she is not enjoined from speaking. They don't even make an attempt to spell out what that is. It's just an abusive TRO. I hope that it will be dissolved. If not, it just stays in place until next Thursday, the hearing for the temporary injunction."

I asked him for a preview of what might come out in that hearing next week, and he said they would enter evidence for how Cook and her husband Wayne Baumgarten were compelled to sign such seemingly draconian non-disclosure agreements.

The motion to dissolve the TRO was denied. She will have to wait for the hearing next thursday, when the TRO runs, as to whether the cult will seek to have it continued to the end of he trial.

From VV blog:
Things start to heat up as Spencer continues to question Debbie Cook...
Spencer: You understood that it would not only be against Scientology ethics but also affirmatively fraudulent if you accepted the $50,000 unless you intended to live up to the agreement.
Cook: I understood that if I took the upper level materials and I put them out to broad public, or if I did something that was an outright violation of our ethics codes, that that would not be OK. Does that answer your question?
Spencer: You're saying that if you lived up to the spirit of the agreement, then it was OK for you to accept the money?
Cook:First, I never expected or asked for the money. I was going to need medical assistance....We did not plan on getting that money...and it was to make nice at the end. Also, I was out of it. I intended to sign whatever I had to sign to live. I signed pieces of paper that they wanted me to sign so that I could go.
Spencer: So you had no intent to live up to the bargain?
Cook: Really, the only thing that was in my mind was to leave.

2:54 pm. Spencer has now entered the New Year's Eve e-mail into evidence as exhibit 7.
Spencer: "Let's go through exhibit 7 line by line."
(OMG, we'll be here for weeks. What is he thinking?)

Surprised there wasn't an OBJECTION to the 'spirit of the agreement' statement.

9:09 am. Pozza now reading the docket. Just met Joe Childs. Hot damn.

9:30 am. It's Judge Martha Tanner. We're headed for the 4th floor.

9:40 am. Rathbun: "They moved to exclude the media. She told them to shove it."

9:45 am. Judge Tanner's bench is decorated with the following signs...

"The witch is in"

"Yes I'm a witch, deal with it"

And

"Thou shalt not whine"

9:49 am. Three television cameras showed up. They're setting up one to serve as a pool feed.

Tom Tobin just introduced himself to me. What a hell of a thing.

Debbie Cook and Wayne Baumgarten are now at the table with their attorney Ray Jeffrey and his two assistants. On the other side, the church appears to have five attorneys.

10:19 am. George Spencer giving his opening statement.

10:28 am. Scientology's attorney, Spencer, tried to get the judge to scuttle Jeffrey's opening statement because it would violate the agreements! She said no. Now Jeffrey is up.

10:50 am. Jeffrey: "Ms. Cook was beaten. She was tortured. She was degraded beyond belief. She was made to watch the torture and beatings and degradation of others. And not just one or two. She was confined in inhuman conditions...they signed this agreement just to get away."

11:00 am. Jeffrey wrapping up his lengthy, impassioned opening statement (he got emotional at one point when he described Wayne Baumgarten wanting to not rock the boat with the church so he could continue to talk to his sons and father, who are church members). Scientology had wanted Judge Tanner to keep Jeffrey under constraints, but she hasn't interrupted him once.

11:09 am. Jeffrey finishing up by raising the issue of the church doing the exact opposite in Florida, where they want a court to butt out when it comes to contracts with members. Apparently, Jeffrey did word clear "estoppel." Recess.

11:26 am. Rinder and Rathbun have been excluded from the room because they will be witnesses.

Spencer calls Debbie Cook to the stand.



Debbie Cook on the stand in Judge Martha Tanner's court.
​
11:40 am. Spencer is showing a videotape of Debbie Cook, in 2007, being interviewed by church attorney Eliot Abelson as she agrees to sign the NDA.

12:05 pm. Lunch break. If the church's intention was to slow things down to a crawl, watching 4-year-old video of documents being signed, page by page, they succeeded. All energy drained from the courtroom. Everyone bolts for lunch. I'm headed to the Riverwalk with a couple of readers of the blog who invited me along.



Debbie Cook gets ready for her testimony to continue after the lunch break
​
Things start to heat up as Spencer continues to question Debbie Cook...

Spencer: You understood that it would not only be against Scientology ethics but also affirmatively fraudulent if you accepted the $50,000 unless you intended to live up to the agreement.

Cook: I understood that if I took the upper level materials and I put them out to broad public, or if I did something that was an outright violation of our ethics codes, that that would not be OK. Does that answer your question?

Spencer: You're saying that if you lived up to the spirit of the agreement, then it was OK for you to accept the money?

Cook: First, I never expected or asked for the money. I was going to need medical assistance....We did not plan on getting that money...and it was to make nice at the end. Also, I was out of it. I intended to sign whatever I had to sign to live. I signed pieces of paper that they wanted me to sign so that I could go.

Spencer: So you had no intent to live up to the bargain?

Cook: Really, the only thing that was in my mind was to leave.


2:54 pm. Spencer has now entered the New Year's Eve e-mail into evidence as exhibit 7.

Spencer: "Let's go through exhibit 7 line by line."

(OMG, we'll be here for weeks. What is he thinking?)


Spencer: You voice many criticisms of what is going on in the church.

Cook: I don't feel that they're criticisms. I feel that they're points of scripture for other Scientologists to follow and to see to it that only our parts of our scripture be followed.


3:10 pm: Funny moment, at least for me. Spencer asks Cook which was the first news story about her e-mail.

Cook: I think it was the Tampa Bay Times that was first.

[Without looking up from my keyboard, I smile and shake my head.]

Cook: No, I think it was the Village Voice.

[Yikes, I gotta watch that. Poker face!]



Spencer is now having her admit that the news stories put the church in an unfavorable light, as if she was responsible for what us hacks write. Seems pretty irrelevant.

[Someone on the church team is going to need to give Spencer a lesson on how to pronounce "Miscavige."]

Debbie sticks up for herself and says she isn't responsible for the Tampa Bay Times wording its story the way it did.


3:27 pm. Another interesting exchange...

Spencer: You knew, did you not, that you were acting to the contrary of the written agreement with the church?

Cook: I felt I was very careful not to violate my agreement.

Spencer: How long did you spend composing that e-mail?

Cook: A couple of weeks.

Spencer: Then you finally sent it out on New Year's Eve. Had you been drinking?

Cook: No.

Spencer: Ten o'clock on New Year's Eve, nothing to drink?

Cook: No.

....

A little later, Debbie says that she didn't expect to be sued. She figured a couple of people would come by after she sent the e-mail.

Spencer: You expected that because you knew it was a violation of your agreement?

Cook: No, I knew the church would not be happy with what I did. I didn't think it was a violation of my agreement.

...

Spencer is now asking her about an e-mail she sent a church attorney sometime after the New Year's Eve e-mail. Spencer quotes this e-mail to the attorney: "I am going to play an active role in the fate of the religion I love."

Spencer: By saying that to the church's attorney, you were communicating that you were going to keep writing and sending e-mails.

Cook: I wanted to communicate that I'm still an active Scientologist, and that I still love Scientology, and I'm going to be active.

Spencer: And that would include future e-mails like the one you sent out on December 31, 2011?

Cook: It would include what I felt was in the best interest of Scientology and Scientologists.

What Debbie says is so true - when you are in that position (and I have been there), you will sign anything to get out of there. It's you, a single individual, against a roomful of OSA executives, lawyers and Security Guards. You don't have any advocate there or any legal representation. It's all the power of Scientology against one single person. You just want one thing, to get the hell out of there, to get free.

A line from the San Antonio Express News: "Spencer also told Tanner that the disturbing allegations being raised by Jeffrey were irrelevant and should not even be heard in open court."
Not fake, not false, not lies...just irrelevant. Signing a binding contract after being kidnapped and tortured is irrelevant. With that type of logic, Scientology now makes complete sense.

The Tampa Bay Times has some amazing coverage too:
"Think about what I could have done if my actual intentions were to cause real damage" to the church's reputation, she wrote.
She listed some of what she had seen:
•
A manager, Mark Ginge Nelson, was made to lick a bathroom floor clean
because "he dared to say he disagreed" with abusive treatment of other
church officials.
• Church executives were held in mass
confinement in a building that came to be known as "The Hole." As many
as 100 top managers were held in the building at the church's 500-acre
compound in the desert east of Los Angeles. Cook said the building had
barred windows and round-the-clock security guards.
• She
witnessed beatings at the compound, including Miscavige punching and
wrestling long-time executive Marc Yager to the ground.
"I could
go on and on but hopefully you get the point by now," Cook wrote to
church officials. "There is plenty I could have exposed if I was out to
damage the church. I am not."
Saying she denied several interview requests from the Tampa Bay Times
and other media, Cook felt she had witnessed "a true horror story" and
was part of "the biggest cover up in Scientology history."

End of the Tampa Bay Times article:

"Cook said she was subjected to beatings, torture, mental and emotional abuse and was denied medical care. The papers don't say where this occurred.
Cook's health declined to the point where her "free agency was effectively destroyed," the papers say.


Cook and Baumgarten believed that if they left the church but did not sign the agreements, they would never be permitted to communicate with family members who remain in the church. Baumgarten's mother was in a church-funded nursing home.


"Simply stated, Ms. Cook and her husband would have signed anything they were required to in order to be free from their captivity and danger, and they were rendered powerless to resist signing the agreement," Cook's attorney, Ray Jeffrey of Bulverde, asserted in the court filing.


The pleadings indicate that beyond duress, there are several other reasons the nondisclosure agreement should be declared unenforceable. Cook and Baumgarten say the agreement is extreme and unreasonable in that it violates their freedom to practice their religion as Scientologists."

Those poor cult lawyers are probably thinking now... "Why did I accept this case from these nutjobs?"

Ironically, in trying to silence Cook about fairly minor matters, the church inadvertently ungagged her by putting her on the witness stand. And on Thursday, she testified for four hours about bizarre and disturbing practices she claims she both witnessed and suffered.

At times tearful, Cook told of spending seven weeks in “The Hole,” at the church’s Los Angeles international headquarters in early 2007. She said she was sent there with about 100 other church officials who had displeased church leader David Miscavige.

“It had bars on the windows and the one entrance was guarded by security guards,” she explained, when asked why she didn’t leave.

At “The Hole,” she testified, people slept on the floor, were denied medical attention and were given watery “slop” served from a big pot. She described how those kept there were forced to confess to things they hadn’t done and sometimes were beaten.

“It had very heavy spiritual and mental effects,” she said.

In her case, she said, she once was forced to stand for 12 hours in a garbage can, while having cold water poured over her and people shouting at her, because she refused to confess falsely that she was a lesbian.

“You felt completely degraded, very terrified that you’d have to go through the confessions or be beaten. And because you hadn’t been sleeping, you were in a horrific mental state,” she said.

She named one man who she said was beaten and then forced to lick a bathroom floor clean after objecting to violence against others.

Asked by e-mail to respond to Cook’s allegations, church spokeswoman Karin Pouw wrote, “The defendants and their lawyer are trying to divert the court with false claims and wild tales to excuse her willful breach (of the contract.)”

“The Church treated Ms. Cook with dignity and respect during her tenure on Church staff,” she said, adding, “Ms. Cook is now clearly bitter and is falsely vilifying the religion she was once part of.”



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