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Curbs Stand on Unpublished Writings

February 21, 1990|DAVID G. SAVAGE | TIMES STAFF WRITER

WASHINGTON — The Supreme Court let stand Tuesday a controversial ruling that biographers and historians may not use unpublished letters, manuscripts, diaries and other works without the permission of the writers or their heirs.

Without comment, the high court dismissed an appeal by a company that had published "Bare-Faced Messiah" by Russell Miller, a biography critical of the late L. Ron Hubbard, founder of the church of Scientology (Holt vs. New Era Publications, 89-869).

The original ruling, made last April by the U.S. 2nd Circuit Court of Appeals in New York, allowed publication of "Bare-Faced Messiah" to proceed on a technicality but declared that unpublished works "normally enjoy complete protection" from being quoted by others.

That ruling was denounced by scholars, authors and free speech advocates. The publisher, Henry Holt & Co., said at the time that the ruling was "being used to muzzle responsible biographers and historians." Moreover, Holt said, the ruling forced publishers to engage in "self-censorship" and prevented the examination of historical truth.

During his lifetime, Hubbard had written letters to the FBI, the White House and the Veterans Administration, letters that biographer Miller obtained through a Freedom of Information request. He planned to quote from the letters in an effort to show that Hubbard was a fraud and a liar.

But lawyers for the church's publishing house filed a copyright infringement suit against Holt and Miller, arguing that church officials had the exclusive right to use the unpublished letters.

The appeals court, on a 2-1 vote, agreed, although it rejected the Scientologists' effort to block the book because the suit was filed too late.

Three years ago, the New York-based court first aroused concern in the publishing industry by blocking a planned biography of reclusive author J. D. Salinger because the book contained excerpts from his private letters. Lawyers for Salinger contended that the right to publish those letters was his alone.

In 1987, the Supreme Court refused to review that decision, but some publishing lawyers said the ruling appeared to cover only the highly personal letters of a still living author.

The ruling involving the Hubbard materials went further, and, in appeals to the high court, the Assn. of American Publishers described the rulings in the Salinger and Hubbard cases as "a one-two punch landed by the 2nd Circuit on historical and scholarly publishing. In the wake of these decisions . . . no prudent publisher can afford to risk even very limited quotation from unpublished materials--no matter the degree of their prior dissemination or how compelling the purpose--since to do so invites injunction of the entire work."

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