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.