Spin-Off from Arkansas Creation-Evolution Lawsuit
Among the records requested by the subpoena were, for instance,
"Any communications with any church or any other religious group or entity, or any person known to be an officer, agent, employee, or minister thereof, concerning religion, origins, evolution, creation, humanism, or subjects being taught in the public schools." (Schedule A, 8) "Any educational or instructional materials concerning creation that have been prepared, promoted, distributed or recommended by the organization for use in private schools." (Schedule A, 121
The "Definitions and Instructions" attached to the subpoena demanded the widest possible interpretation of the requests. They even demanded (Point "F"): "All documents called for by this subpoena shall be produced in the files, if any, in which they were found."
We believed that the subpoena was an encroachment upon our Constitutional right of free speech, upon our privacy, and was an incredibly broad "fishing expedition" totally unrelated to the Arkansas law Suit all the more so since we have had no contact whatsoever with any member of the Arkansas state legislature or State government. We felt that we must contest the subpoena simply because it was plainly unjust and really a form of "legal" harassment. We therefore contested the matter in the U.S. District Court of Kansas in Wichita. We were represented by Attorney Earl C. Moore of Wichita. The other side was represented by a Wichita law firm, but also flew in Mr. Gary Crawford, an attorney from New York City, to argue their case. Mr. Crawford submitted a brief in the case to the U.S. District Court in Wichita.
In his brief, Mr. Crawford explained that the purpose of the subpoena, extended not only upon the CSSHS but also upon other creation-science related groups elsewhere in the USA, was to find out (i) exactly what "creation-science" is, what beliefs creationists hold, and what the scientific basis for those beliefs is; (ii) to find out the aims and purposes of, as well as the relationship and contacts among, the creation groups; and (iii) to find out about any connection or contact between creation groups and the Arkansas Creationism Act. Mr. Crawford then explained why the documents sought in the subpoena should be considered relevant to the Arkansas case.
The case came on for a hearing before the U.S. District Court for the District of Kansas on October 28, 1981. We are happy to report that U.S. District Court Judge Patrick Kelly ruled in favor of the Creation Social Science and Humanities Society and Mrs. Ellen Myers, its Secretary-Treasurer, and quashed the subpoena. We quote briefly from Judge Kelly's ruling:
... it seems to me that we are on a fishing expedition and the license to harass people, whether it's Mrs. Myers or other people it seems to me it is violative of her First Amendment rights or those of this association. So, I'm going to suppress the subpoena of Mrs. Myers to produce these record I would suggest that you go back to the State of Arkansas, and with the consent of the plaintiffs and the Attorney General and in conference with the Judge, bring to his attention what I have just said. . This gentleman will be ultimately required to determine its relevancy anyhow, and if he is to say, "Yes, I appreciate under the laws of Arkansas or the particular case you cited that this is permissible conduct," and would authorize it, then you need not come back again. But lam hesitant otherwise 1 think it would license people to literally harass others on their religious faiths or convictions and that need not be....
I have to say that just from my own experience, you are testing a statute by attempting to demonstrate that it is religious in nature and unconstitutional or whatever your reasons are and, as a consequence, are about the work of taking testimony from people who apparently have views that are consistent with that which you are attempting to set aside or test, Seems to me you opened Pandora's box. I would want to know that the trial Judge acquiesces in whatever it is you are attempting to do and appreciates that whatever it is you are attempting to subpoena may be relevant and not violative of the First Amendment ...l' m convinced you're going to find all over the country the resistance from people - whether it's this group or others just to coming in out of the blue with a subpoena to have them produce records . .
From Transcript of Proceedings, U.S. District Court, District of Kansas, Case No. LR-C-81 -322 in the Eastern District of Arkansas, Western Division, Rev. Bill McLean, et al, Plaintiffs, vs. the State of Arkansas, et al, Defendants, pp, 29 ff.).