Legal Action To Suppress Diaries About Joseph Smith

By Jerald and Sandra Tanner

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In the last issue of the Messenger we reported concerning the anti-Tanner movement and some individuals who were using aliases in an attempt to discredit our work. In a notice accompanying that newsletter, we also announced that the Federal Government approved our non-profit organization, Utah Lighthouse Ministry, and that “any gifts given to the ministry are tax-deductible.”

Since publishing the March newsletter things have been very exciting at Utah Lighthouse Ministry. On May 7, 1983, we were served with a summons to appear in court. The paper made it clear that we were being sued for reproducing extracts from William Clayton’s diaries. This is the first time that anyone has actually taken legal action against us. In 1961 the Mormon Apostle LeGrand Richards threatened to sue us, and in 1965 Apostle Mark E. Petersen made a similar threat. Neither of these men followed through with any action (see Mormonism— Shadow or Reality? pages 12-13). The plaintiff in the suit that has been filed against us is Andrew F. Ehat, and the attorney is listed as Gordon A. Madsen, the “authorized agent of Religious Studies Center” at the Mormon Church’s Brigham Young University. In the Complaint, we find the following:

4. The plaintiff is a research historian . . . having received a Master’s Degree from Brigham Young University . . . During the course of said graduate historical research, plaintiff was given permissive access to the private, heretofore-unpublished Nauvoo Journals of one William Clayton then deposited with the Office of the First Presidency of the Church of Jesus Christ of Latter-day Saints, from which he permissively extracted certain notes, quotes and extracts.

5. From said notes plaintiff, in collaboration with one Lyndon W. Cook, produced a book titled “The Words of Joseph Smith,” the proprietary interest and copyright interest of which were assigned by Ehat and Cook to the Religious Studies Center, an agency of Brigham Young University, . . . At no time has the plaintiff given the defendants, or either of them, any permission to publish or print any notes taken by him from the William Clayton Journal.

The complaint alleges that we violated Mr. Ehat’s rights when we produced the book Clayton’s Secret Writings Uncovered. The suit asks for damages of up to “the sum of $50,000,” and the costs of the action to the plaintiff, which could, of course, amount to thousands of dollars. The plaintiff also requests that we “be ordered to deliver up on oath for destruction all infringing copies of said notes, together with all plates, molds, matrices and other means for making such infringing copies.”

Why the Lawsuit Will Fail

We feel that this suit cannot be successful because it is based on an erroneous assumption—i.e., that Ehat can copyright the writings of William Clayton. We find the following plainly stated in 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 Ehat’s notes are composed of extracts from “preexisting” material (the diaries of William Clayton), he cannot claim copyright protection. If Mr. Ehat had made a unique compilation or translation of Clayton’s words, he could have sought protection under the copyright law. The notes which we have published do not meet either of these requirements. They are only typed quotations which are not organized for publication. They could not, therefore, be considered to be a manuscript prepared for publication. Although they are typed out, they would only be considered to be equivalent to photocopies of a document.

Because Mr. Ehat was able to put a copyright on the book The Words of Joseph Smith, he seems to feel that he has the exclusive rights to the quotations from William Clayton’s diaries. Using the same reasoning, we could maintain that Moody Press (the publisher of our book The Changing World of Mormonism) holds a copyright on the recently discovered sheet containing characters which were supposed to have been taken from the gold plates of the Book of Mormon. We could argue that a photograph of the document appears in the book, and since the book has a copyright at the front, it must cover this important document. We could also put a copyright on the three Joseph Smith diaries we have published and claim we have the exclusive rights to these diaries. Such claims, of course, would be ridiculous and would never hold up in court. If such a thing could be done, it would have some serious implications for the Mormon Church. For instance, an ex-Mormon by the name of Chuck Sackett has recently published the Mormon temple ceremony with a copyright at the front of the pamphlet. According to Ehat’s reasoning, this would mean that a non-Mormon now owns the literary rights to the temple ceremony. It is, of course, true that Mr. Sackett can copyright his own introduction, comments, footnotes, etc., but the text of the ceremony is in the public domain.

When we printed the extracts from William Clayton’s diaries we took special precaution to see that we did not violate Mr. Ehat’s rights. In the Introduction to Clayton’s Secret Writings Uncovered, we wrote:

. . . several months after Mormon scholars began circulating the typed extracts, we were given permission to make a copy. At first we were reluctant to print the material. Andrew Ehat was vigorously opposed to anyone publishing the material. In fact, one man who was preparing to print it, received a letter from Ehat’s lawyer which threatened legal action if he did not desist. We tried to weigh the rights of the Mormon people to know the truth about the diaries their leaders had suppressed against Ehat’s desire to keep the extracts out of the hands of the public. From what we were able to learn, Ehat could not copyright the material taken from Clayton’s diaries. However, he could possibly claim a copyright on his own comments which appear in the manuscript. Comments of Lyndon Cook also appear in the margins. To solve this problem we have cut off the sides of the photocopies and blacked out Ehat’s notes which appear in the text. Therefore, we have a photographic printing of the document which does not violate Ehat’s manuscript rights. . . . we feel we have arrived at a good solution to the problem.

One thing about Ehat’s notes which really interests us is that they appear to have been typed on four different typewriters. The typewriter styles change frequently throughout the manuscript. It is possible, of course, that Ehat typed all the pages on different typewriters, but there is reason to suspect that at least some of them came from a different source or sources. One Mormon scholar claims that the manuscript is actually a compilation of material from three individuals—Andrew F. Ehat, Lyndon W. Cook and James B. Allen. Allen, who formerly served as Assistant Church Historian, used some of these quotations in an article on William Clayton which was published in Journal of Mormon History, vol. 6, 1979, pages 37-59. This was an excellent article, but Allen was apparently fearful of revealing that these diaries were in the First Presidency’s vault. In a footnote on page 42, he only revealed that they were in “private custody”: “William Clayton, Journals, November 1842 to January 1846 (in private custody and used here by special permission), 9 February 1843.”

A handwritten note at the beginning of the manuscript which Ehat claims as his own says that the portions which have been underlined (at least 43 places) have been published by Allen. We cannot help but wonder if these are the original pages Allen used to prepare his article. We will probably get to the bottom of this when we take the depositions of Ehat, Cook and Allen. In any case, the book by Ehat and Cook contains a footnote which could destroy Ehat’s entire case. It seems to indicate that the quotations used in The Words of Joseph Smith really came from James B. Allen:

23. William Clayton 1842-1846 Diaries. Citations from these diaries are used by permission and were provided by Dr. James B. Allen, professor of history at Brigham Young University, Provo, Utah. In sharing with us these quotations, Dr. Allen has substantially assisted this work. (Hereafter cited as William Clayton Diary.) (The Words of Joseph Smith, page 263)

There seems to be a number of other serious weaknesses in Ehat’s case which we intend to point out as the suit progresses. We will probably find it necessary to take testimony from a number of Church officials and to seek access to the original Clayton diaries because they contain material which is important to our case.

“It Could Destroy the Church”

Although Ehat claims in the suit that he will suffer “irreparable harm, damage and injury” if we are allowed to continue printing the Clayton material, we feel that there are probably other reasons for his actions. The devastating nature of the material in the diaries probably has a great deal to do with Ehat’s attempt to sue us. The Seventh East Press told how copies of the Clayton notes began to circulate around Brigham Young University. When Ehat found out, there was a real confrontation in “a campus office.” According to individuals who were present, “Ehat was extremely upset and at one point said, ‘if this gets out it could destroy the Church” (Seventh East Press, January 18, 1982, page 11). Mr. Ehat was apparently horrified when he learned that a copy he had given to Lyndon Cook was secretly duplicated by a member of a bishopric who shared an office with Cook. The same article says that “Ehat implied he had made copies for others as well, but declined to mention any names” (Ibid., page 1).

In any case, Ehat felt a personal responsibility to keep this embarrassing material from getting into the hands of critics of the church. After Mr. Ehat discovered the leak, he worked diligently to try to retrieve all of the copies that were in the possession of students and faculty at Brigham Young University. His efforts, however, were to no avail. He claimed that the situation “cost me getting a master’s degree here at the university in the sense that I lost twelve weeks of my life trying to track down all the people who had copies” (Ibid., page 11). According to Seventh East Press, the “unauthorized circulation of Andrew Ehat’s notes from William Clayton’s Nauvoo diaries . . . and other materials from the Historical Department of the Church prompted President Holland last November to appoint Noel Reynolds, Vice President over General Education, Religion, and the Honors Program to investigate the situation and retrieve unauthorized historical materials” (pages 1 and 10).

It was only about a month after Seventh East Press reported on the Ehat affair that the Mormon leaders began to implement very repressive measures to see that no more sensitive material comes to light. James L. Clayton, a historian from the University of Utah, became very disturbed about the matter, and in a speech delivered February 25, 1982, he protested:

More recently, indeed, just within the past few days, I understand that the archives of the LDS Church have been closed to all research in the diaries, the letter books and other sensitive materials of the First Presidency and the Quorum of the Twelve back to the 1830s—diaries and letters long open to and currently used by scholars. Many projects of considerable worth are now stymied or will be finished with incomplete sources.

At a recent meeting of the Mormon History Association, David Whittaker, University Archivist at BYU, has admitted that the Church has tightened up its policy as far as access to documents is concerned:

. . . It’s clear that there are collections closed, presidential collections for example, now closed in Salt Lake. It’s clear that there are some collections closed. Some scholars see it as closing the barn door after the horse is gone . . . I was one of those for a number of years that had pretty full access. . . . like most private libraries, those who criticize much of the policies of both BYU, for example, or the church archives, fail to see that they’re basically private libraries . . . it’s obvious that there are a lot of collections that from my point of view ought to be open. Part of the criticism has to do with material in the vault. For example, the first presidency. Which material has never been available. It was never available even in the sixties. (Eighteenth Annual Meeting of the Mormon History Association, May 6, 1983, typed copy)

At any rate, Mr. Ehat is probably deeply troubled because his notes have caused so much embarrassment to the Church. It is possible that one of Ehat’s motives for filing the suit is to vindicate himself in the eyes of the church leaders. If this is the case, Ehat has made a great mistake. The suit is only going to cause more embarrassment to church leaders. Since we feel that we have a very good case, we do not intend to make any compromises. We will continue publishing the Clayton extracts, and the publicity surrounding the suit will certainly tend to make more people aware of the whole affair.

In the Introduction to Clayton’s Secret Writings Uncovered, we show that the Clayton diaries cast early Mormonism in a very bad light. William Clayton records that Joseph Smith told his first wife, Emma, he would “relinquish all” his plural wives for her sake, but in reality he didn’t intend to “relinquish any thing.” According to Clayton, Joseph Smith was willing to go so far as to initiate a fake excommunication against him to cover up the practice of polygamy: “Says he . . . I will give you an awful scouring & probably cut you off from the church and then I will baptise you & set you ahead as good as ever” (William Clayton Diary, October 19, 1843, typed extracts). Joseph Smith’s secretary’s diaries clearly show that Smith used “untruth” as an important tool to advance his work. Not only was he deceiving the outside world, but he was deceiving his own wife and other members of the Church.

The diaries also contain important evidence that the History of the Church, which the Church claims was written by Joseph Smith himself, was actually compiled after his death. Portions of Clayton’s diary were plagiarized and changed to the first-person to make it appear that Smith was the author. Furthermore, instead of confirming Joseph Smith’s famous prophecy concerning Steven A. Douglas, the Clayton diary provides devastating evidence against it.

The Mormon leaders should have come to grips with these important matters, but instead they have been engaged in a cover-up. They kept the Clayton diaries locked in a vault, and after the extracts leaked out, they took measures to see that other sensitive materials did not come to light. The Mormon “underground” (a group composed mostly of liberal Mormon scholars) spread many copies of the notes to different parts of the United States. Most of those who received copies were very careful to see that they did not fall into the hands of critics of the Church. Finally, several months after Mormon scholars began circulating the typed excerpts, we were given access to a copy of them. As we have already stated, we printed them under the title, Clayton’s Secret Writings Uncovered, and neither the Mormon Church nor Mr. Ehat made any attempt to stop us. Mr. Ehat allowed us to continue printing them for almost a year, then suddenly he filed a suit in which he claimed he would suffer “irreparable harm, damage and injury” if we were allowed to continue. This all makes a very unusual story and certainly provides further evidence that the Mormon Church is based on a very shaky foundation.

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