By Jerald and Sandra Tanner

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On April 28, 1983, the Mormon scholar Andrew Ehat filed a lawsuit against us (Jerald and Sandra Tanner) in an attempt to stop publication of some extracts from the diaries of Joseph Smith’s private secretary, William Clayton. Because these diaries contain embarrassing material on the origin of polygamy and other matters, they have been suppressed in the vault of the First Presidency of the Mormon Church. In 1979-80 Mr. Ehat gained access to a copy of the diaries and made the revealing extracts. Ehat tried very hard to keep the material from falling into the hands of the critics of the Mormon church, but a member of a bishopric surreptitiously duplicated a copy which Ehat had given to Lyndon Cook and it was widely circulated by Mormon scholars at Brigham Young University. These extracts subsequently found their way into our hands, and we printed them in the book Clayton’s Secret Writings Uncovered.

We felt the law did not support Ehat’s charge of copyright violation and cited the following from Section 103(b) of Title 17, United States Code: “The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material.” Since Mr. Ehat’s notes are composed of extracts from “preexisting” material (i.e., the diaries of William Clayton), we felt that he could not claim copyright protection.

On March 21, 1984, Judge A. Sherman Christensen commenced a trial which ended in a very unexpected way. On March 25 the Judge announced that we were correct in saying that Mr. Ehat had no copyright in the Clayton material: “2. That the plaintiff has no copyrightable interest in the so-called Ehat notes nor their ideas nor content, and that plaintiffs claim against the defendants for copyright infringement should be dismissed with prejudice” (Court Ruling, page 17). Instead of dismissing the case, however, Judge Christensen apparently felt that we should be punished in some way for printing the sensitive material. He, therefore, awarded $16,000 for what he said was “unfair competition” and damage to Ehat’s reputation. We felt that Judge Christensen’s decision was completely unjust and contrary to the law. Since Christensen was a Mormon, Andrew Ehat’s lawyer, Gordon A. Madsen, apparently felt that he could capitalize on the religious issue. In the depositions he took from us, he asked questions to make it clear that we had left the church and were publishing sensitive church documents. This, of course, could create a great deal of prejudice towards us in the mind of a believing Mormon.

Judge Threatens Us

In addition to the $16,000 judgment against us, Judge Christensen said he was going to stop our publication of the Clayton material: “. . . Clayton[’s] Secret Writings Uncovered . . . cannot lawfully be continued to be sold and distributed by the defendant . . .” (Court Ruling, page 16). Just four days after making this statement, Judge Christensen began to have doubts about the wisdom of his decision to enjoin the publication, and on April 10, he held a hearing and completely reversed his decision with regard to the injunction.

Since Christensen reversed the decision, we concluded that we could continue to sell the publication. On April 29, 1984, we published a full-page advertisement in the Salt Lake City newspapers in which we publicly criticized Judge Christensen’s decision on “unfair competition” and indicated that we would continue selling the publication. We felt that we were well within our rights of freedom of the press guaranteed to us in the Constitution. Incredible as it may seem, however, Judge Christensen granted Ehat’s lawyer a hearing concerning the newspaper article. It is our belief that he only granted the hearing so that he could rebuke us for criticizing his judgment in the newspapers and to try and intimidate us so that we would not continue selling the publication. At this hearing Judge Christensen made some remarkable statements which clearly showed his prejudice against us:

THE COURT: At the time this matter was before me for final decision with respect to injunctive relief, I was persuaded that an injunction would involve too many problems of enforcement and First Amendment rights . . .

The other thing that persuaded me was my assumption that Mr. Tanner was acting in good faith, was a law abiding citizen . . . I really didn’t expect that Mr. Tanner would insist upon continuing to commit what was ajudged to be an unlawful act, . . . not only did he do that, but as I read the article, . . . he really misrepresented the decision of the Court and flaunted his defiance of it. . . . damages of a nature far beyond what were awarded heretobefore could well flow from the crafted, misrepresentation of the Court’s judgment . . .

The Tanners . . . had to advertise through misrepresentation their violation and invite the public to contribute to that violation. I guess I’m a little naive. I’m not used to dealing with the kind of people when I accord consideration on balance in faith that there would be at least an attempt to comply with the Court’s ruling. I’m not used to people advertising their noncompliance . . . The Tanners have done about as much as they can to flaunt the judgment of the Court . . . I don’t see that they can do very much else unless they want to publish another advertisement to try and market the matter. But if they do there is relief here. . . . In my judgment, the amount of damages as a result of this additional publication under the circumstances I have mentioned may well be immeasurably more than the damage that was suffered by the plaintiff up to the time of the judgment. . . . the Tanners have done about as well as they could do to justify punitive damages. . . . if the plaintiff suffered in the magnitude of $15,000 for the unlawful misappropriation and publication, the damages could well exceed that by many times because of the emphasis that hadn’t applied before through this public announcement and the Tanners’ flaunting and misrepresentation of the judgment of the Court . . . if and when the case is affirmed, I assume the Tanners can be brought in and a full accounting made as to what other sales they have made which were unlawful. . . . The Tanners will be liable as a matter of law for such damages including punitive damages as may have been additionally caused by their unlawful act. (“Partial Transcript of Proceedings,” May 8, 1984)

It was plain from this hearing that Judge Christensen was trying to intimidate us through threats of awarding vast sums of money to Mr. Ehat so that we would not publicly question his decision. On page 10 of the transcript, he stated that he might award “many times” the “15,000” (actually $16,000) because of our “public announcement and . . . flaunting and misrepresentation of the judgment of the Court . . .” This statement is certainly difficult to interpret, but one could get the impression that he intended to award hundreds of thousands of dollars.

In any case, we viewed these threats as nothing less than an attempt to keep us from exercising our freedom of speech, and felt that it was deplorable that a judge representing the United States Government would stoop to such methods to keep us from questioning his decisions. We felt that this was not the American way and did not intend to be intimidated by his threats. We believed, in fact, that the Judge’s decision against us and his subsequent threats were a serious miscarriage of justice. The case was appealed to the 10th circuit court to be reviewed by a panel of three judges.

Finally, on December 30, 1985, the U.S. Court of Appeals For The Tenth Circuit ruled in our favor and completely overturned Judge Christensen’s decision:

Andrew Ehat brought this action against Gerald and Sandra Tanner . . . Judgment was entered against the Tanners, and they appeal. We reverse. . . .

Ehat’s complaint asserted claims under the federal copyright statutes, on which the judge granted summary judgment for the Tanners. In addition, the complaint alleged state common law claims for unfair competition and unjust enrichment. Following a bench trial on these claims, the Court entered judgment for Ehat. On appeal, the Tanners assert that the district court erred in awarding damages on Ehat’s common law claims because those claims are preempted by the federal copyright statutes. We agree. . . . State law forbidding others to copy an article “unprotected by a patent or a copyright . . . would interfere with the federal policy, found in . . . the Constitution and in the implementing federal statutes, of allowing free access to copy whatever the federal patent and copyright laws leave in the public domain.”. . . We cannot agree with the district court that Ehat’s state claim was not within the scope of copyright because it was based on his right in the notes “as a physical matter and property.”. . . the court awarded Ehat $12,000 for general damage to his reputation as a scholar-that claim is preempted as well. . . .

Ehat “cannot achieve by an unfair competition claim what [he] failed to achieve under [his] copyright claim.”. . . Ehat’s state law claim is preempted. The case is reversed and remanded for further proceedings consistent with this opinion. (“Appeal from the United States District Court for the District of Utah” [D. C. No. 83-0593C], pages 2-4, 6-8)

Andrew Ehat’s lawyer had originally argued before Judge Christensen that if he could not prove that there had been a copyright violation his entire case would fail:

THE COURT: Do you concede that if the law is that the quotations of your quotation from the journal doesn’t violate any proprietary interest of your client that your case fails?

MR. MADSEN: I think it does. I think if they can say this is not copyright material and they therefore are at liberty to print it. (“Hearing to Quash Subpoena Duces Tecum and Objections,” September 6, 1983, pages 10-11)

Mr. Madsen now argues that “uncopyrightable material” is also protected by law. After the U.S. Court of Appeals issued their decision against his client, Madsen submitted a “Petition for Rehearing and Suggestion for Rehearing En Banc.” He asked the Court to “rehear the appeal and reconsider the opinion heretofore rendered in this case . . .” He claimed that if the decision was allowed to stand, the result would be “intolerable” and “immoral.” On February 10, 1986, the Court of Appeals responded that “the petition for rehearing is denied by the panel that rendered the decision sought to be reheard.

The petition for rehearing having been denied by the panel to whom the case was argued and submitted, and no member of the panel nor judge in regular active sercice [sic] on the Court having requested that the Court be polled on rehearing en banc, Rule 35, the Federal Rules of Appellate Procedure, the suggestion for rehearing en banc is denied.

This, of course, means that our long nightmare has finally ended. Back in November, 1983, we printed the following in the Salt Lake City Messenger:

Fighting this lawsuit will cost thousands of dollars and a great deal of time, but we feel that it will all work out for our good. The publicity surrounding it has already helped our work a great deal. Some of those who oppose our work have been hoping that the suit will drive us into bankruptcy, but we feel that it will have just the opposite effect. As Joseph told his brothers who had sold him into Egypt, “. . . ye thought evil against me; but God meant it unto good, to bring to pass, as it is this day, to save much people alive” (Genesis 50:20). In Romans 8:28 we read: “And we know that all things work together for good to them that love God, to them who are called according to his purpose.”

Although Andrew F. Ehat is attempting to destroy our work with a suit which asks damages of up to “the sum of $50,000,” and the costs of the action to the plaintiff, we do not hold any bad feelings toward him. He apparently feels that he is doing the right thing and that he is working to save the Mormon Church.

Now that it is all over, we really want to thank the people who stood with us through this terrible ordeal. The prayers and financial help we received have been a great help and we are rejoicing that the funds came to meet the expenses involved in this whole affair.

Bombing Victim Could Not Testify

As strange as it may seem, the “white salamander” question even found its way into our court trial. In the “Pre-Trial Order,” Gordon A. Madsen indicated that he was thinking of calling “Steven Christensen,” the man who bought the Salamander letter and was later killed by a bomb, as a witness against us. In the “Trial Brief” Mr. Madsen wrote:

The deliberateness of defendants is further emphasized by the testimony of Christensen and the defendants that the printing of stolen and unpermissive material has been, and is, a habit with these defendants and is highlighted by the most recent issue of defendants’ publication, The Salt Lake Messenger, in which they both advertise the continued sale of the Clayton publication and print excerpts from Mr. Christensen’s [Salamander] letter without permission, knowing full well who owned the document, that the same has not been previously published, and completely disregarding the rights of Mr. Christensen.

At the trial itself the following exchange occurred between Gordon A. Madsen and Jerald Tanner.

Q. Indeed the forepart of that same Messenger has some quotes in it from a letter that hasn’t yet been printed that you acknowledge is owned by Mr. Steven Christensen, doesn’t it?

A. It has quotations from a letter, but that has not been stolen.

Q. But your quotations from it were without any permission from Mr. Christensen, were they?

A. I did not need permission from Mr. Christensen because the owner[ship] of the document is in the family, and it’s the family rights would be the descendant[s] of Martin Harris.

Q. You say in your own article that Christensen is the owner of that document, do you not?

A. Yes, but if you would read the copyright law there is a difference between ownership of the document and ownership of the manuscript rights.

Q. What effort did you make to determine who owned the copyrights in that Christensen letter?

A. I’m sure that it’s been so long that no one would.

(Trial Transcript, pages 391-392)

Steven Christensen was present at our trial, but because the Judge felt that Mr. Ehat’s lawyer was wasting so much time on irrelevant material, he was unable to call him as a witness. It was lucky for Mr. Madsen that Christensen could not testify. Madsen had tried to play down the idea of a “Mormon underground” which was secretly circulating sensitive church documents. In our attempt to find material that would nullify Steven Christensen’s testimony, we learned that he was deeply involved in this underground. He had even been dealing with some of the church’s worst enemies—i.e. the Mormon fundamentalists, who teach polygamy and the Adam-God doctrine. We had a list of over 2,000 books and manuscripts which Christensen had in his possession at that time and were prepared to question him concerning how he obtained copies of some of the restricted Mormon documents.

We do not believe that Steven Christensen had any manuscript rights to the Salamander letter, but even if he had, we quoted only a few sentences from it in the March 1984 issue of the Messenger. This would fall well within the limits of “fair use,” and therefore would not be considered a copyright violation. Furthermore, if Ehat’s lawyer had pressed the matter further, he would have learned that the extracts we published were obtained even before Steven Christensen purchased the letter. They certainly were not stolen. If Christensen had been called to the stand to give testimony, it would have had a disastrous affect on Mr. Madsen’s attempt to minimize the role of the “Mormon underground.” The whole thing, in fact, would have been very embarrassing for Mr. Christensen.

Steven Christensen seems to have been thoroughly converted to the Salamander letter. Instead of listening to the message of caution which we printed in the March 1984 issue of the Messenger, he wanted to fight us in court. He continued to believe in Mark Hofmann and his stories concerning the discovery of important Mormon documents for more than a year. Although he seems to have eventually come to the conclusion that Hofmann was involved in illegal activities, by this time it was too late. If investigators are correct in their theory, it was Christensen’s continued involvement with Hofmann which led to his untimely death.

Deseret Foundation

Another interesting fact that has come out of the investigation of the bombings is that Andrew Ehat, the man who sued us, was employed by Steven Christiansen as a researcher. The Deseret News, for November 17, 1985, reported: “During the time Christensen was Sheets’ right-hand man at Coordinated Financial Services, he employed Ehat as a researcher through the Deseret Foundation, . . . Christensen left CFS hurting financially himself, and Ehat got another job.” When the trial took place Mr. Ehat said that he earned money as “a researcher,” but he did not mention that he was working for the Deseret Foundation. In the Trial Transcript, pages 54-55, he listed some of his expenses. One of them was the “Loss of work, November of 1983 approximately $560, . . .” We were a little puzzled by this statement because when we took his deposition on November 23, 1983, he said he was not employed:

Q. Are you currently employed?

A. No, I’m not employed.

Q. What’s your current source of income?

A. I’m a graduate student. I’ve had a fellowship and G I Bill.” (Deposition of Andrew Ehat, page 5)

We wondered why Mr. Ehat didn’t answer yes to the question of whether he was employed. The reason could be that he did not want to reveal to us his connection with Steven Christensen and the Deseret Foundation. At the time we found it hard to believe that a man with a family who was struggling to go through school would have the money to press this lawsuit against us. We wonder now if the Deseret Foundation could have been helping Mr. Ehat finance the suit.

So far we have not been able to learn much about the Deseret Foundation. According to the Articles of Incorporation, it is a “non-profit corporation” set up for “charitable, educational and scientific purposes.” It was founded January 18, 1974, by Gary Sheets [whose wife was later killed in the bombings], Robert Raybould and C. Dean Larsen. Although we do not know when Steven Christensen became involved in the organization, a report dated January 14, 1983, shows that “Steve Christensen” was a trustee in the organization at that time. While we do not know if it means anything, reports submitted to the State of Utah for 1984-85 show that three members of the Board of Trustees (Steven A. Apple, C. Dean Larsen and Wayne A. Jenson) had offices at “200 North Main” in Salt Lake City. This is the address for the McCune Mansion. The Deseret News for October 17, 1985, reported that just before Hofmann was injured by the bomb, he had come out of “the McCune Center.” The article also states:

Detectives learned upon questioning witnesses . . . that Hofmann was seen carrying a briefcase or package into the building. Another witness said he returned to his car with the item. Police now speculate that the package he carried may have been a bomb, and that when he placed the bomb into his car, it detonated, . . .

If it could be established that Hofmann really did carry a bomb into the McCune Mansion, it would make us very suspicious that the target might have been a member of the Deseret Foundation. This, of course, would raise the question of whether Hofmann had some secret dealings with the Deseret Foundation. If anyone has any additional information on this foundation we would certainly appreciate it if they would contact us.

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