Box Turtle Bulletin

Federal Judge Allows Uganda Lawsuit Against Scott Lively to Go Forward

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.