Federal Judge Allows Uganda Lawsuit Against Scott Lively to Go Forward

Jim Burroway

August 15th, 2013

It’s on. U.S. district Judge Michael Ponsor has ruled that a lawsuit against Scott Lively filed by Sexual Minorities Uganda can continue. The ruling went against a motion to dismiss filed by Lively’s attorneys, on which arguments were heard in court last January. Parties were notified of the ruling late Wednesday.

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.”

The lawsuit stems from several actions that CCR says Lively performed, including the infamous March 2009 anti-gay conference in Kampala and meetings with Ugandan lawmakers. Two weeks later, rumors emerged that Parliament was drafting a new law that “will be tough on homosexuals.” That new law, in its final form, would be introduced into Parliament later in October, and included the death penalty for “aggravated homosexuality.” Meanwhile, the public panic stoked by the March conference led to follow-up meetings, a march on Parliament, and a massive vigilante campaign waged on radio and the tabloid press. Lively would later boast that his March 2009 talk was a “nuclear bomb against the gay agenda in Uganda.”

When Judge Ponsor heard arguements in January on the motion to dismiss, he expressed doubts about the validity of the lawsuit under First Amendment freedom of speech grounds. “I’m frankly struggling to see what behavior beyond expressive behavior” which was against federal law. He warned that plaintiffs “needed to show a more concrete example of misbehavior to justify continuation of the lawsuit.” With yesterday’s ruling, he has ruled that the lawsuit can continue. In yesterday’s ruling, Judge Ponsor wrote (PDF: 208KB/79 pages):

…aiding and abetting a crime against humanity is a well-established offense under customary international law, and actions for redress of this crime have frequently been recognized by American courts as part of the subclass of lawsuits for which the ATS furnishes jurisdiction. Given this, the allegations set forth in the Amended Complaint are more than adequate at this stage to require denial of Defendant’s motion to dismiss. (page 4)

Widespread, systematic persecution of LGBTI people constitutes a crime against humanity that unquestionably violates international norms. A review of applicable authorities makes the answer to the second question easily discernible as well. Aiding and abetting in the commission of a crime against humanity is one of the limited group of international law violations for which the ATS furnishes jurisdiction. (page 20)

Addressing First Amendment concerns, Judge Ponsor wrote:

Defendant has vigorously argued that all his actions are protected by the First Amendment to the United States Constitution. Discovery may, or may not, reveal that the argument is correct, and this issue will almost certainly be front and center at the summary judgment stage of this case. What is quite clear now, however, is that the Amended Complaint adequately alleges that Defendant’s actions have fallen well outside the protections of the First Amendment.

Defendant is correct that the First Amendment places limits on the imposition of tort liability linked to offensive speech, and that the protection of free expression, including the protection of “thought we hate,” is a centerpiece of our democracy.

For example, intentional infliction of emotional distress claims — which ask a jury to consider whether speech was “outrageous” — are too subjective to meet the requirements of the First Amendment when applied to public figures or topics of public concern. …In the criminal context, even if speech advocates for the use of force or for violations of law, it receives First Amendment protection “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

On the other hand, when noxious words become part of a criminal enterprise, the First Amendment provides limited protection. As Justice Black, an unsurpassed supporter of the First Amendment, wrote:

It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute. We reject the contention now. . . .

. . . [I]t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written or printed. Such an expansive interpretation of the constitutional guaranties of speech and press would make it practically impossible ever to enforce laws against agreements in restraint of trade as well as many other agreements and conspiracies deemed injurious to society.

It is well-established that speech that constitutes criminal aiding and abetting is not protected by the First Amendment. …It is equally well supported that the same logic extends to civil actions for aiding and abetting.

In determining whether speech that is related to political advocacy receives First Amendment protection, the Supreme Court has distinguished between “theoretical advocacy,” meaning advocacy of “principles divorced from action,” and speech that is meant to induce or precipitate illegal activity. As the court in Brandenburg recognized, “[T]he mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.” Merely advocating for reform is quite different constitutionally from preparing for criminal activity. (page 57-61)

…In making this decision, the court is mindful of the chilling effect that can occur when potential tort liability  is extended to unpopular opinions that are expressed as part of a public debate on policy. However, at this stage, the Amended Complaint sets out plausible claims to hold Defendant liable for his role in systematic persecution, rather than merely for opinions that Plaintiff finds abhorrent. The complexion of the case at this stage entitles Plaintiff to discovery and requires the court to deny Defendant’s motion to dismiss. (page 64-65)

CCR responded to yesterday’s ruling:

Today, in a first-of-its kind case brought by a Ugandan LGBTI advocacy organization against a prominent U.S. anti-gay extremist, a federal judge ruled that persecution on the basis of sexual orientation and gender identity is a crime against humanity and that the fundamental human rights of LGBTI people are protected under international law. The ruling means that the case brought by the Center for Constitutional Rights (CCR) on behalf of Sexual Minorities of Uganda (SMUG), a Uganda-based coalition of LGBTI rights and advocacy groups, can move forward over defendant Scott Lively’s request to dismiss the lawsuit.

Keep in mind, the Judge has not ruled that Lively’s actions are not protected under the First Amendment, nor has he ruled that Lively’s actions do not constitute the commission of a crime under international law. He has ruled simply that the complaint brought to the court by CCR on behalf of Sexual Minorities Uganda is sufficient for the case to continue, based on the proper understanding of international law, the First Amendment, and various other issues (standing, etc.) addressed in the ruling. I think you can also read the ruling as a set of ground rules, establishing the kind of activities that CCR will need to prove Lively committed during trial in order to prevail.

The trial now moves to discovery phase.

Priya Lynn

August 15th, 2013

: )

Andrew

August 15th, 2013

Given recent limitations placed on the Alient Tort Statute by the SCOTUS and the strong First Amendment underpinnings here, I think this is very much going to be an uphill battle, but one well worth fighting.

I’ve been a staunch advocate and defender of FA rights here and elsewhere, to the point of being boo-hooed by many here.

But there comes a limit, and I think this judge sees the possibility in that. This falls well past the “shouting fire in a crowded room”, into something more like “that gay person intends to burn your children alive because they’re all arsonists and murderers, get ’em!”.

What a shame it’s not a criminal prosecution.

Timothy (TRiG)

August 15th, 2013

I suspect this case was always a long shot, but it’s interesting that the judge thinks it’s potentially valid. The ruling is simply saying “this case is not, on its face, absurd”, isn’t it?

TRiG.

Jim Burroway

August 15th, 2013

I think the ruling is fairly low-level. All it says is *if* the allegations in SMUG’s/CCR’s complaint can be proven, then they have a valid basis under the law to sue and press for damages. The judge is not passing judgement on the merits of the case, i.e. whether SMUG/CCR will be able to actually prove their allegations. That proof would have to go beyond merely Lively expressing his opinions, which is his First Amendment right to do. I agree with Andrew that it is an uphill battle.

I would be very surprised (and a bit alarmed) if the March conference were the sole basis of a win here. I think CCR would have to provide evidence of what was said, for example, at the meetings Lively had with lawmakers, or perhaps correspondence between him and Ugandan leaders. Or maybe if he shared information about LGBT Ugandans with Red Pepper or The Rolling Stone (Ugandan) tabloid (For the record: I don’t actually have any suspicion, let alone info, that he has done this. It’s just a “what if”) Those would be the kind of things that would be necessary for a win here, if I read this right.

Hue-Man

August 15th, 2013

Is the U.S. or any State a party to the lawsuit? If not, I’m confused what the First Amendment has to do with Lively’s heinous activities in Uganda (and elsewhere), spoken or otherwise. As I’m frequently reminded:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Lindoro Almaviva

August 16th, 2013

I wonder if Lively’s recently taking credit for the law in Russia will play play a part. Certainly I hope they bring it up and then make the comparisons.

Jols

August 16th, 2013

I think it’s very positive: Lively was fully counting on “absolute first amendment” rights, while the judge stresses here that even in the USA there are limits to the first amendment. What’s more, recognizing that LGBT people are worthy of protection and that their rights fall under international protected rights wasn’t necessarily a given.

What should help the accusation is that Lively, for his own fundraising purposes, had made a lot of public statements flaunting his direct influence on the Uganda bill.

Michael Ejercito

August 17th, 2013

I have grave doubts that making laws could be illegal. The legislative process, by definition, can not be criminal violence. It would be strange if campaigning for the passage of laws constitutes some sort of international crime.

Priya Lynn

August 17th, 2013

I think it would easily be an international crime if a law was passed that called for the imprisonment or execution of people by nationality, race, etc.

nl7

September 9th, 2013

I’m not sure I entirely understand the rationale. Tons of countries have terribly unethical anti-gay laws, including the death penalty in some cases. Yet the executives, legislators, and judges of these countries are not subject to arrest in the US and are extended diplomatic immunity.

I don’t think it makes sense to say that an American is abetting a war crime by writing and advocating a law, if the government officials that enact and enforce that law are not also war criminals.

To be clear, I am completely against this law and I do NOT acknowledge that Uganda’s government has any sovereign right to make such a horrible law. I just don’t accept that US law necessarily allows this ATS cause of action. This seems like a case of punishing a guy for being a bigot, while letting a country get away with murder – which completely undermines the legal rationale.

jdgalt

September 9th, 2013

While I, too, see this law against gays as a bad thing, and if I were one of those affected I would certainly want to leave that country — nevertheless this case, if successful, would set a very disturbing precedent: from then on, the advocacy abroad of any law that the US congress feels like calling a “crime against humanity” would be a crime in the US. How long will it be before advocates of legalizing drugs or the sex trade, for instance, are persecuted for their advocacy “crime”?

Political advocacy needs to be beyond the reach of any law. No country that would punish it deserves to be called free or even civilized.

Priya Lynn

September 10th, 2013

Jdgalt, legalizing drugs or prostitution does not harm anyone againt their will or put innocent people to death. There’s no comparing them with what’s going on in Uganda.

Rob

September 10th, 2013

Jdgalt- There is a marked difference between Congress making statements on legislation in other countries, while they are in America, and an American citizen going into another country and attempting to write their legislation for them.

Congress has a responsibility as part of their job, to comment and deal with foreign policy, Mr Lively does not.

Rob

September 10th, 2013

nl7-

The First amendment deals with Americans, not foreign legislatures, and as such, Americans can be held responsible to The United States Constitution, whereas non citizens in their own country cannot. As Americans we are held liable for our actions regardless of where we are.

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