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.