CHARLOTTESVILLE, Va -- .Can an American court hold a U.S. citizen liable for the effects his speech has in a foreign country? We may soon find out. Last Wednesday a federal judge allowed a novel legal claim to proceed in his Massachusetts courtroom, setting up a groundbreaking suit pitting the free-speech rights of an anti-gay pastor and activist against the basic human rights of gay Ugandans.
If you haven’t heard of Scott Lively yet, you will. The pastor is hardly unique in his views about the evils of homosexuality, from repurposing the old canard that to be gay is to be a pedophile, to his original and truly deranged claim that it was homosexuals who caused the Holocaust. Lively’s got a predictably loyal following of haters and snarlers. It’s just that unlike his brethren who stop at preaching religious hatred on cable television and AM radio, Lively has taken his virulent hate speech on the road, consulting in many other countries, specifically Uganda and Russia, to persuade foreign governments to pass brutally repressive anti-gay legislation.
Indeed Lively played a key role at an anti-gay conference in 2009 that eventually led to the drafting of Uganda’s so-called Kill the Gays bill, a bill that’s been kicking around its Parliament ever since, that would impose the death penalty for the “offense of homosexuality” under certain circumstances. And Lively has also been involved in efforts to criminalize gay advocacy in various foreign countries – resulting in not just rising abuse and reprisals, but in a gutting of the very legal protections with which gay advocates might defend themselves.
Lively has openly bragged of his own role as the “father” of the anti-gay movement in Uganda, calling his campaign “a nuclear bomb against the ‘gay’ agenda in Uganda.” The question is whether all this constitutes mere speech or something more.
Last year Lively was named in a lawsuit brought by the organization Sexual Minorities Uganda, aka SMUG, that included three claims under the Alien Tort Statute, a law that gives “survivors of egregious human rights abuses, wherever committed, the right to sue the perpetrators in the United States.” SMUG, represented in this lawsuit by the New-York based Center for Constitutional Rights, claimed at argument in a motion to dismiss the suit last January that Lively’s actions over the course of a decade resulted in the persecution, arrest, torture and murder of members of Uganda’s LGBT community. Federal Judge Michael Ponsor heard arguments in Lively’s motion to dismiss, and last January he seemed to suggest that he saw little activity on Lively’s part that wasn’t protected expressive behavior. But last week Ponsor tossed out the motion to dismiss, allowing the suit to go forward.
In his 79-page opinion, Judge Ponsor rejects every one of the five arguments contained in Lively’s motion to dismiss. He suggests that, giving credence to the allegations of the plaintiffs, as he must at this stage, “sufficient facts are alleged, with specific names, dates, and actions, to support the claim that Defendant’s behavior crossed well over any protective boundary established by the First Amendment,” and “widespread, systematic persecution of LGBTI people constitutes a crime against humanity that unquestionably violates international norms.”
Lively’s lawyers from Liberty Counsel tried to argue that the whole suit is preposterous, not just because it punishes the pastor for protected First Amendment speech, but also because the Supreme Court’s recent decision in Kiobel v. Royal Dutch Petroleum, precludes Alien Tort Statute claims for events occurring in foreign nations. Judge Ponsor found that this case differed from Kiobel because Lively is a U.S. citizen and most of his advocacy work occurred here in the United States. “Indeed,” writes Ponsor, “Lively is alleged to have maintained what amounts to a kind of ‘Homophobia Central’ in Springfield, Massachusetts.” He finds that the extraterritorial restrictions set forth in Kiobel don’t apply when the defendant and his most of his conduct are based in the USA.
Lively has claimed that his words were all taken out of context. “Most of the ostensibly inflammatory comments attributed to me are from selectively edited video clips of my 2009 seminars in Kampala,” he told the Guardian last year. “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.”
But Judge Ponsor seems to have read the spots off the complaint. He goes through the detailed travel and contacts arranged between Lively and several others alleged to be leaders in Uganda’s anti-gay initiative. Ponsor details the many speeches, seminars, and events laid out in the complaint, at which Lively, by his own admission, was “instrumental in the efforts . . . not only to create a rhetorical platform for Uganda’s anti-LGBTI campaign of persecution, but to craft specific initiatives designed to repress and intimidate LGBTI people and organizations advocating on their behalf.” According to the complaint, Lively also published two books that “presented a comprehensive plan of action designed to repress the so-called ‘gay movement,’ “ which he described as “the most dangerous social and political movement of our time.” The two proposed steps were “criminalizing advocacy – that is, subjecting any public expressions of support for the LGBTI community to criminal prosecution – and attributing to LGBTI individuals a compulsion to sexually abuse children.” Lively acknowledges that he read and commented on a draft of the 2009 “Kill the Gays” legislation. Soon after, and while the bill was still pending in Parliament, harassment and abuse of LGBT Ugandans increased significantly.
Judge Ponsor dismisses out of hand Lively’s argument that “because LGBTI people suffer discrimination in many countries, acts of persecution committed by him against this community cannot be viewed as violating international norms.” He calls the whole argument “specious” and finds that “the history and current existence of discrimination against LGBTI people is precisely what qualifies them as a distinct targeted group eligible for protection under international law. The fact that a group continues to be vulnerable to widespread, systematic persecution in some parts of the world simply cannot shield one who commits a crime against humanity from liability.”
In deciding to allow the litigation to move forward, Ponsor is not ruling in the case; he’s merely giving the plaintiffs a chance to prove their theory that what Lively did went beyond the bounds of protected free speech to become aiding and abetting serious human rights violations. He is also giving them an opportunity to put hate on the stand, and reveal the extent to which some overzealous American religious leaders – feeling they have lost the culture wars at home – are trying to export their most vicious and repressive anti-gay campaigns abroad.
Lively spent last month bragging about his role in Russia’s recent moves to clamp down on homosexuality, writing on his website that Russia “has just taken the very important and frankly necessary step of criminalizing homosexual propaganda to protect the society from being ‘homosexualized.’ This was one of my recommendation to Russian leaders in my 50-city tour of the former Soviet Union in 2006 and 2007.” It’s hard to believe anyone would go on to brag about Russia as the obvious place to relocate the American dream, but as Steve Benen noted, Lively was quick to go there as well: “Russia could become a model pro-family society,” he wrote. “If this were to occur, I believe people from the West would begin to emigrate to Russia in the same way that Russians used to emigrate to the United States and Europe.”
There is an Only-In-America quality to the fact that a U.S. court might reach out to punish hate speech and persecution of minorities using international human rights laws and an obscure alien torts statute. But that pales in comparison with the Only-In-America-ness of an American deploying First Amendment arguments to defend his anti-gay advocacy in Uganda, all while working to build a utopian family paradise in Russia. Where dissidents go to jail every day.
Dahlia Lithwick writes about the courts and the law for Slate.