The analysis speech, action and jurisdiction; without this opportunity under the Alien Tort Act, Lively could have got off without rebuke; now he cannot escape that what he did exceeds the bounds of his religious freedoms
By Melanie Nathan and Cathy Kristofferson, January 11, 2013.
This past week, a most unusual Motion to Dismiss was heard in a Massachusetts Court. A foreign based LGBTI community is suing a U.S. Pastor on U.S. soil, charging that he has committed crimes against humanity, resulting in their persecution and the Pastor is trying, for a second time, to have the case dismissed by the Judge.
The lesbian, gay, bisexual, transgender and intersex community of Uganda, under the umbrella organization Sexual Minorities of Uganda (SMUG) has brought a lawsuit against anti-gay Pastor Scott Lively, under the Alien Tort Act, which allows foreigners to sue in American courts in situations alleging the violation of international law. The suit claims that Lively’s actions resulted in the persecution, arrest, torture and murder of homosexuals in Uganda.
SMUG is represented by the U.S. based Center for Constitutional Rights (CCR) , attorneys Pamela C. Spees, Baher Azmy, Jeena D. Shah, and local counsel Luke S. Ryan. Known for advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights, CCR, a non-profit legal organization committed to the creative use of law as a positive force for social change, was founded in 1966 by attorneys who represented the civil rights movements in the South.
Lively, President of the SPLC designated hate group, Abiding Truth Ministries, is represented by the notorious anti-gay Liberty Counsel, attorneys Horatio G. Mihet, Stephen Crampton, Philp D. Moran. The Southern Poverty Law Center lists the Liberty Counsel as being one of twelve groups comprising an “anti-gay crusade.” The LC also devotes its time to fighting against same-sex marriage, civil unions, and adoption by homosexuals.
Cathy Kristofferson, GetEQUAL lead for MA, attended the oral arguments last Monday and has highlighted the following excerpts for O-Blog-dee-O-Blog-da, providing some insight into the directions the Judge could take in his decision about whether or not to dismiss the case:-
The Judge, Honorable Michael A. Ponsor, (1) who must now decide whether to dismiss the case or allow it to go to trial, noted:-
“ I can’t help but mentioning that, like many people in this courtroom, I’ve actually been to Uganda. I was in Kampala many years ago. Its a wonderful country, and I feel privileged to be here adjudicating issues that affect the people of Uganda because my visit there impressed me so much with the country and its people.
The defendant is a minister, an evangelical minister, at least described as an evangelical minister, an attorney and author, and is an individual whom the plaintiffs characterize as having made statements and writings that identify the so-called gay movement as evil and destructive, and, according to the plaintiffs at least, has advocated the criminalization of homosexuality and associations and advocacy related to homosexuality. course, these are only allegations contained in the complaint and they remain to be proved by the plaintiff.
The defendant, Reverend Lively, is alleged to have visited Uganda beginning in 2002 and in connection with his visit to Uganda was advocating his views with regard to homosexuality which has had destructive effects on the plaintiff.
The lawsuit is brought in five counts of crime against humanity under the Alien Tort Statute which the plaintiffs contend is actionable based upon its advocacy of persecution of gay people. The complaint alleges both individual liability, accessory liability, and conspirator liability for the alleged crimes against humanity. There are also two claims, the final two counts, two of the five counts that have been offered under Massachusetts state law, one for conspiracy and one for negligence.”
The Judge, after making the initial statements made the unusual move of allowing the Plaintiff to present first as it seemed the most pressing issue where the Judge felt argument would be most useful was the quest for dismissal by the Defendant on the issue of the First amendment right to freedom of speech.
Hence the Plaintiff attorney argument here was to show the imperative distinction. That Lively’s anti-homosexual language was not the basis for the case against him, but rather to be used only as “evidence” when it comes time to prove that it was the ACTIONS of Lively (conspiracy and active participation) in causing the persecution in Uganda:-
The issue here is if we stripped away every single thing that Mr. Lively uttered in public in Uganda, we would still have underlining conduct that makes him liable for the persecution.
14, 2: Spees
the legal definition of persecution under international law is simply — and I say simply in quotes — the severe deprivation of fundamental rights on the basis of identity, and that’s what we have here.
and this is where his speech becomes evidence, because we hear him calling for the criminalization of their advocacy.
this is at a crossroads of First Amendment and equality and equality is the sine qua non of how we want to function in a democracy and that’s exactly what he is working against.
There isn’t any allegation, is there, that he actually helped to draft the legislation
there are allegations in the complaint that he did assist in the development of that legislation, and there are allegations in the complaint that he has encouraged the criminalization.
isn’t the plaintiffs’ allegation here that not just that your client was speaking but that he was kind of a minister of propaganda for a conspiracy that involved some people taking physical action, some people taking legislative action, some people taking other sorts of direct physical or legal initiatives against the gay population, and his job, in coordination with all these other people they allege — I know they have to prove it and I know that you would repeatedly deny it — but his role in the conspiracy was as a sort of minister of propaganda? He was the one to keep the rhetoric turned up; he was the one to inspire people; he was the one deliberately intending that this be carried out, and when someone’s activities go that far, haven’t we crossed the boundary from protective First Amendment activity into an area where you have the sort of brutal deliberate activity that’s intended to harm someone else in combination with others who are actually doing the dirty work or the dirtier work?
and it has brought this lawsuit against Mr. Lively predicated entirely on a purposeful confusion between what Mr. Lively has said and between what a handful of other people, whom Mr. Lively has never even met, have done years after the speech that he allegedly engaged in.
What has he done that puts him, according to SMUG, in the same category as the Nazi War criminals that put the cyanide capsules in the gas chambers in Auschwitz?
And SMUG alleges that Mr. Lively when he was in Uganda did primarily two things: One, he conflated homosexuality with a predilection against or violence against children; and, two, he argued that Ugandan’s laws, which already criminalized homosexuality, not be relaxed. Those are the two things, and this is not an oversimplification of what SMUG alleges.
We would submit this is the most important paragraph in the entire complaint. It encapsulates the crux of SMUG’S claim and this is what SMUG alleges. That “By repeatedly characterizing the LGBTI community as rapists and murderers and child abusers — not to mention possessing genocidal tendencies of the Nazis and Rwandan conspirators — Lively deliberately invited, induced and encouraged a proportional response from Ugandans, i.e., severe repression, arrest certainty and even violence.”
the Supreme Court says the Brandenburg decision “has held that political advocacy of unpopular ideas even of outright criminal conduct is protected by the First Amendment and immune from criminal or civil liability, unless it is both directed and likely to incite imminent lawless conduct.”
but it sounds to me that you’ve articulated pretty clearly what the plaintiffs have articulated. That he knew that the speech that he was giving actually would or very likely would have resulted in physical violence against the members of the plaintiffs’ organization and that he did it with that intention.
Your Honor, if later that day is not imminent, later this decade cannot possibly be imminent. The actions that SMUG alleges, the eight specific acts of persecution took place years, not days, not weeks, but years after the speech in 2002 and 2009 that they complain of.
They suggest that they should be entitled to take discovery perhaps from other people at those meetings to know what was going on and that this could possibly result in the disclosure of some type of smoking gun showing even more — from their point of view they’ve already alleged enough, but showing a higher degree of coordination and teamwork between your client and the individuals in Uganda. Should I give them an opportunity to take that discovery and give you another shot at the motion for summary judgment and see where we are then?
THE COURT: Isn’t that just the kind of general claim that the First Circuit has been uncomfortable with? You know, I want to know on this day he met with this person and he did this thing which had this consequence, or maybe let me put it a little bit more open. Don’t you have to allege that on this day he met with this person and he did this thing and as a result there was this consequence? That that general kind of statement I guess makes me uncomfortable. I’ll certainly consider it carefully.
it’s the denial of those fundamentals rights which make it so serious because it’s also often the precursor to something much worse and that’s what we’re talking about here.
The second scenario in which somebody is like — as long as there have been several references to Nazi Germany, someone like Goebbels who was a minister of propaganda who didn’t himself set up the train routes and didn’t himself go off and shoot anybody but who was assigned the role in this organization of developing the propaganda effort that would support the brutality, it’s easy to see that that would not be protected by the First
This is a situation where we are talking about segmenting off an entire group of people and treating them differently from the rest of humanity and denying them rights based on it and that’s a very, very different thing.
If Kiobel goes the wrong way, I’m afraid the plaintiff is out of luck.
The Judge has reserved judgment on whether or not to dismiss the case or if he should allow it to go to trial. If the Judge does not dismiss the case, then the case will enter the discovery phase.
However there is a chance the case could be dismissed on the basis of the outcome of a case currently before the Supreme Court, Kiobel v. Royal Dutch Petroleum, which will rule on the question of jurisdiction. Twelve Nigerian nationals filed a lawsuit against three European oil companies for aiding the Nigerian military in killing and torturing civilians who protested oil exploration in Nigeria. The simple but potentially far-reaching question as to what business does a case like this have in the courts of the United States, could seriously impact the Lively case.
All said and done, whichever way this turns out, and even if the case is dismissed for any reason, or be it for lack of jurisdiction based on the Kiobel, or even if it goes to trial and SMUG’s burden of proof is too onerous to nail Lively for his actions and deeds, in respect of which his hate speech and misrepresentations are mere evidence, the victory will always be that of SMUG and CCR and the Global LGBTI community.
This is because Scott Lively has been forced into a court of law and is being held accountable for what he did to the Ugandan LGBTI community.
Without this opportunity under the Alien Tort Act, Lively could have got off without rebuke. However now he has to show up, and spend hundred of hours on this case to defend himself. He can whine and cry and play victim until the cows come home, but he cannot escape that what he did exceeds the bounds of his religious freedoms. He has never been denied his rights and this case does not impact his rights. He is free and always has been free to practice his form of Christianity in his church. He is free to preach in Uganda to thousands of people. However he ought not be free to conspire against an innocent minority community, based on his religious beliefs, resulting in the direct persecution of the group.
(1) Michael Adrian Ponsor (born 1946 in Chicago) is a senior judge on the United States District Court for the District of Massachusetts. He serves in the court’s western region, in the city of Springfield.Judge Ponsor graduated from Harvard College in 1969, and received a Rhodes Scholarship, studying at Pembroke College, Oxford, from which he obtained an M.A. in 1971. He graduated from Yale Law School in 1975.He was appointed to the position in 1994 by then-President Bill Clinton. He assumed senior status on August 15, 2011.
Article By Melanie Nathan and Cathy Kristofferson © 2013 All Rights reserved, O-Blog-Dee-O-Blog-Da
Photos Cathy Kristofferson © 2013 All Rights reserved
Contact: Melanie Nathan
Tweeting:- @melanienathan1 #Stopthehate
Contact: Cathy Kristofferson:
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