Federal Judge Expresses Doubt About Lawsuit Against Scott Lively

Jim Burroway

January 7th, 2013

A hearing was held today at a Federal Court in Springfield, Massachusetts on a motion to dismiss a lawsuit filed against American anti-gay extremist Scott Lively. The Center for Constitutional Rights is suing Lively on behalf of Sexual Minorities Uganda, alleging that Lively engaged in a conspiracy to deny the LGBT community of their rights under International Law and which resulted in harm to the LGBT community. Lively is being sued under the Alien Tort Statute, which provides federal jurisdiction for “any civil action by an alien, for a tort only, committed in violation of the law of nations or a treaty of the United States.” In today’s hearing, U.S. District Court Judge Michael A. Ponsor expressed doubts about the case:

During a 90-minute hearing in U.S. District Court, Ponsor said the lawsuit filed by Sexual Minorities Uganda against the Springfield minister poses a test of Lively’s free-speech protection and the rights of sexual minorities to equal protection under the law.

But the judge said the plaintiffs needed to show a connection between Lively’s anti-gay advocacy in Uganda and illegal acts committed against gays in the country.

“I’m frankly struggling to see what behavior beyond expressive behavior” of Lively violated federal law, the judge said during the hearing attended by about 150 people, including a prominent Ugandan activist.

The plaintiffs, the judge added, “needed to show a more concrete example of misbehavior to justify continuation of the lawsuit.”

As I wrote last March soon after the case was filed, this is the very challenge CCR faces in this case. CCR’s case cannot simply be a recitation of what Lively said. If it is, then the case becomes solely about Lively’s speech and beliefs which, as odious as they are, are nevertheless protected under the First Amendment. What CCR would need to do is provide proof that Lively actually engaged in actions which constitute a plan or conspiracy with the desired outcome being the infringement of the rights of LGBT people under International Law, and that LGBT people in Uganda, as a result of that conspiracy or action, suffered as a result. Hence the judge’s emphasis on “misbehavior.”

While Judge Ponsor expressed his skepticism about the case, he also cast doubt on Lively’s motion to dismiss. According to the Springfield Republican, the judge didn’t indicate when he would rule on the motion to dismiss.

Lively is being defended in the lawsuit by Liberty Counsel.

F Young

January 7th, 2013

Freedom of expression is not unlimited, even in the USA. There are laws against copyright infringement, disclosure of official secrets, false advertising, pornography, drug labeling, and torts like slander. Freedom of speech can also be limited by contract, as when an employee is fired for speaking badly of his employer, or a lawyer is disbarred for violating solicitor-client privilege.

How is the classic case of yelling “Fire!” in a crowded theatre to incite a stampede different from yelling “Gays are recruiting your children, etc.” in a homophobic country that hardly has any rule of law, that has a history of civil violence and a neighbour that has engaged in ethnic genocide?

While I am not a lawyer, personally, I think a bigger issue is whether it can be proved that Lively knew that what he said was false, and perhaps whether his hate speech was intended to provoke violence or some other tort?

Or is it enough that he intented human rights violations?. He is on record as supporting the bill provided the death penalty is removed, even though it would still impose widespread violations of several human rights.

andrewdb

January 7th, 2013

I am a lawyer. The good news is Liberty Counsel aren’t very good.

Hunter

January 8th, 2013

andrewdb:

That was my thought — if Lively’s being defended by Liberty Counsel, CCR’s in good shape.

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