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.

Federal Judge Expresses Doubt About Lawsuit Against Scott Lively

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.

Lively Responds to Lawsuit

Scott Lively yesterday responded to the lawsuit filed in Federal District Court by Sexual Minorities Uganda alleging that Lively engaged in a decade-long effort to help plan and encourage the persecution of LGBT people in Uganda in violation of international law. Lively defends his actions as the simple exercise of his freedom of speech, telling The New York Times, “”That’s about as ridiculous as it gets. I’ve never done anything in Uganda except preach the Gospel and speak my opinion about the homosexual issue.” He also told Bob Unruh at World Net Daily:

I am an American citizen [being targeted] over the persecution of homosexuals as they define it as a crime against humanity – for speaking the truth of the Bible in a foreign country,” Scott Lively, of Abiding Truth Ministries, told WND today after he found out about the legal action.

Warren Throckmorton responded to that rather quickly:

Where does the Bible say that homosexuality is responsible for the Holocaust? For the Rwandan genocide? That gays are pedophiles? Are those Biblically based beliefs?

Warren also notes that Exodus International board member Don Scmmierer and International Healing Foundation’s Caleb Lee Brundidge also spoke at that 2009 conference, but neither of them are named in this lawsuit.

Lively also told World Net Daily:

“Frankly, I don’t this is actionable,” Lively told WND. “They make it clear that this suit is … premised on speeches or writings.

“I spoke to members of parliament in their assembly hall, and advised them to focus on therapy and not punishment [for homosexuality],” he said.

“What they’re suggesting here is that the duly elected legislative representatives of Uganda, the cream of Ugandan society, cannot be responsible for their own [legislative] actions – that they adopted legislation because a white evangelical came and said something to them,” he said.

Casting this in racial terms is desperate. The complaint also notes that Lively has traveled to Moldova, Russia and Latvia with similar goals. The measure if his influence in those areas are mixed. Frank Mugisha, Executive Director of Sexual Minorities Uganda, notes that there was a clear difference in the atmosphere for LGBT people in Uganda after 2009 when compared to the time before that fateful 2009 conference.

Lively’s strongest argument so far however is his contention that “this suit is … premised on speeches or writing.” The Center for Constitutional Rights senior staff attorney Pam Spees emphasized that the suit is not about his speeches or beliefs, but about a series of planning meetings that took place since 2002 that reached its fruition in the events of 2009. “He was the go-to guy,” she told reporters in a conference call, “the man with the plan.” The challenge in court will be for CCR to provide enough evidence to support their contention of that plan to keep the lawsuit away from being solely about Lively’s speech and beliefs.

While speech alone cannot be the sole basis for this lawsuit (It would, and should, be thrown out immediately if it is), I can envision that Lively’s speeches can be a major part of the evidence presented. Since Lively opened the subject of the Rwandan genocide during his talk in Kampala in 2009, let me return to those events as an example. As the Hutu militias were engaged in a bloodthursty orgy of murder and mayhem in 1994, they were urged on by radio announcers broadcasting anti-Tutsi propaganda, complete with announcements of which Tutu’s live where so that mobs could find them. Were the radio announcers simply exercising free speech? Or were they accomplices in crimes against humanity? International law sides with the latter.

When Lively appeared on Ugandan media, he too broadcast his own virulent brand of anti-gay propaganda, although he didn’t call out people by name and address and urge that they be hunted down. His friends did that instead. Mercifully, Uganda did not slide into genocide, although the proposal before Uganda’s Parliament, if enacted into law, would result in a state-sanctioned outcome that would be remarkably similar. (Lively disavows the proposed death penalty, although he struggled with it a while before finally deciding that it was not something that he would support.) The real question, then, is what specific role did Lively play, in addition to his public talks, which led to the events of 2009? That is CCR’s challenge before the court.

Finally, Lively also had this response for the Associated Press:

“Most of the ostensibly inflammatory comments attributed to me are from selectively edited video clips of my 2009 seminars in Kampala,” he said. “I challenge the plaintiffs and their allies to publish the complete footage of the seminar on the Internet. They will not do this or their duplicity would be exposed.”

It’s my understanding that the Kampala-based Family Life Network, who sponsored the 2009 conference, owns the copyright to the video. While it is legal to publish excerpts of the video under the “fair use” clauses of U.S. copyright law, it would be illegal for anyone who is not the copyright owner to post the entire video. Why hasn’t Stephen Langa’s Family Life Network published the video? Who knows. It’s theirs to do as they wish. But by not publishing it, they leave the door open for Lively to complain about “selectively edited clips.”

Lawsuit Filed Against Scott Lively For Instigating Anti-LGBT Persecution in Uganda

L-R: Unidentified woman, American holocaust revisionist Scott Lively, International Healing Foundation’s Caleb Brundidge, Exodus International boardmember Don Schmierer, Family Life Network (Uganda)’s Stephen Langa, at the time of the March 2009 anti-gay conference in Uganda.

The Center for Constitutional Rights has announced this morning that they are filing a lawsuit on behalf of Sexual Minorities of Uganda (SMUG) against American anti-gay extremist Scott Lively for his role in “the decade-long campaign he has waged, in coordination with his Ugandan counterparts, to persecute persons on the basis of their gender and/or sexual orientation and gender identity.” CCR announced its action this morning in a conference call with reporters. I was among those participating in the call.

The complaint (PDF: 2.2MB/47 pages) was filed in U.S. District Court in Massachusetts at Springfield, where Lively currently resides. CCR is bringing the suit 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 other words, it allows a foreign national to sue in U.S. courts for violations of U.S. or international law conducted by U.S. citizens overseas. According to CCR, the U.S. Supreme Court has affirmed that ATS is a remedy for serious violations of international law norms that are “widely accepted and clearly defined.”

The crime against humanity in international law that CCR alleges that Lively violated is the crime of persecution, which is defined as the “intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.” CCR alleges that the defendant plaintif, Sexual Minorities Uganda, as well as individual staff members and member organizations, suffered severe deprivations of fundamental rights as a direct result of a coordinated campaign “largely initiated, instigated and directed” by Scott Lively.

In a conference call with reporters, CCR Senior Staff Attorney Pam Spees said that the Alien Tort Statute act had been applied in other specific cases of human rights violations against individuals. But she acknowledged that if this case prevails, it would establish a precedent for applying it to the crime of persecution, which, as a crime against a group, is different from a general “ordering the killing of people in his custody.” She pointed out U.S. asylum cases have acknowledged sexual orientation and gender identity and expression as legitimate claims for persecution.

Lively is best known for his role, reported first here on BTB, as featured speaker at an anti-gay conference held in Kampala in March 2009. During that conference, Lively touted his book, The Pink Swastika, in which he claimed that gays were responsible for founding the Nazi Party and running the gas chambers in the Holocaust. Lively then went on to blame the Rwandan genocide on gay men and he charged that gay people were flooding into Uganda from the West to recruit children into homosexuality via child sexual molestation.

During that same trip, Lively met with several members of Uganda’s Parliament. Only two weeks later, there were already rumors 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. 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.”

In the complaint filed in Federal District Court, CCR provides details of Lively’s activities in Uganda going back to 2002, when Lively began touring Uganda and establishing contacts with leading Ugandan figures, including Stephen Langa (who organized the March 2009 conference) and Pentecostal pastor Martin Ssempa. While there, he was interviewed for major daily newspapers and appeared on radio and television. In a conference call with reporters, Spees said that Lively’s particular influence on Uganda’s religious leaders was the primary avenue for “telegraphing the sense of terror” through his accusations against the gay community, and that influence picked up significantly following the 2009 conference. The complaint includes several examples where Lively’s rhetoric showed up virtually verbatim in statements from Ugandan religious and political leaders. She also pointed out that the preamble of the bill’s original draft included language that was lifted straight out of conference materials.

Tarso Luís Ramos, Executive Director of Political Research Associates, echoed Spees’s assertion that Lively’s influence played a major role in the growing climate of persecution in Uganda. He described the main avenue of influence as from religious leaders like Lively to prominent Ugandan religious leaders who also wield considerable moral and political influence. Ramons said that during Lively’s 2009 trip to Uganda, he also met with members of the Ugandan Christian Lawyers Association and members of Parliament, and spoke at an assembly of 5,000 college students and at major pentecostal churches. According to the complaint, M.P. David Bahati, author of the Anti-Homosexuality Bill, was among those who attended the Kampala conference. Bahati and former Ethics and Integrity Minister James Nsaba Buturo were also named as co-conspirators in the complaint.

Ramos and Spees contrasted Lively’s role with that of the secretive U.S. organization known as The Family or The Fellowship. Spees described Lively as the “go-to guy whose rhetoric went into hyperspace to stamp out” LGBT people “in a strategic way.” She alleged that he provided a “tangible, clear plan” in contrast to The Family, which tried to distance itself from the bill. One  part of the “clear plan” outlined in the complaint was Lively’s recommendation for the criminalization of LGBT advocacy in Uganda. That recommendation became Clause 13 in the Anti-Homosexuality Bill.

Spees emphasized that while Lively’s “violent anti-gay rhetoric” forms a basis for the evidence of the complaint, the case is not about hate speech but what she described as his systematic efforts to provoke persecution in Uganda and elsewhere. She described Lively as a “key player in persecution” in a concerted effort to deprive and remove rights for LGBT Ugandans.

Speaking via telephone form Uganda, SMUG Executive Director Frank Mugisha welcomed the filing. He said that when the March 2009 Kampala conference was announced, they had no idea how far that conference’s influence would go. Before 2009, he described an atmosphere where people were somewhat freer to live in groups as gay people, but after the conference there were demonstrations, meetings, reports of arrests, people being thrown out of their houses and churches, beatings, and severe curbs on freedom of assembly. Just last month, Ugandan authorities raided a meeting by LGBT leaders at a hotel in Entebbe and tried to arrest Kasha Jacqueline Nabagese, founder of the lesbian rights group Freedom and Roam Uganda.

More information about the lawsuit against Lively can be found at the CCR web site.

Update: The New York Times has this reaction from Lively:

Reached by telephone in Springfield, Mass., where he now runs “Holy Grounds Coffee House,” a storefront mission and coffee shop, Mr. Lively said he had not been served and did not know about the lawsuit. However, he said: “That’s about as ridiculous as it gets. I’ve never done anything in Uganda except preach the Gospel and speak my opinion about the homosexual issue. There’s actually no grounds for litigation on this.”