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Federal Court Dismisses Gay Ugandans’ Lawsuit Against Anti-Gay U.S. Minister

Posted on: June 7th, 2017 by Art Leonard No Comments

U.S. District Judge Michael A. Ponsor dismissed a lawsuit that the Center for Constitutional Rights (CCR) brought against Scott Lively, whom the judge described as “an American citizen who has aided and abetted a vicious and frightening campaign of repression against LGBTI persons in Uganda.” CCR is representing Sexual Minorities Uganda, an umbrella group for LGBTI organizations within that country.  While excoriating Lively for his actions, the judge held  that the Alien Tort Statute (ATS) does not give the federal court jurisdiction to decide whether Lively has violated international human rights.  Sexual Minorities Uganda v. Lively, 2017 U.S. Dist. LEXIS 85836, 2017 WL 2435285 (D. Mass., June 5, 2017).

In a previous ruling on Lively’s motion to dismiss the lawsuit shortly after it was file, Judge Ponsor had rejected Lively’s argument that his action “simply did not violate international norms with sufficient clarity to place it within the narrow class of claims subject to ATS jurisdiction. The court ruled in 2013 that “widespread, systematic persecution of LGBTI people constitutes a crime against humanity that unquestionably violates international norms.”  Lively had also argued in that motion that all of his conduct to which the plaintiffs were objecting took place outside the United States, so a U.S. court could not try and punish him for such conduct.  At that time, Judge Ponsor was not willing to dismiss the complaint on this basis without giving the plaintiffs a chance to conduct discovery in support of their claim that Lively engaged in sufficient activity in the U.S. to subject himself to the court’s jurisdiction.

Lively, who lives in Massachusetts, had email contact with anti-gay individuals, including legislators, in Uganda on several occasions, and traveled to that country several times for meetings that led to the drafting and introduction of a draconian law that would impose the death penalty for “aggravated homosexuality.” Lively’s published anti-gay writings and speeches in Uganda were allegedly an important element in the anti-gay movement in that country.

Judge Ponsor’s description of Lively’s beliefs and activities pulled no punches. “Defendant’s position on LGBTI people range from the ludicrous to the abhorrent,” he wrote.  “He has asserted that ‘Nazism was in large part an outgrowth of the German homosexual movement,’ and that ‘in seeking the roots of fascism we once again find a high correlation between homosexuality and a mode of thinking which we can identify with Nazism.’  He has tried to make gay people scapegoats for practically all of humanity’s ills, finding ‘through various leads, a dark and powerful homosexual presence in . . . the Spanish Inquisition, the French “Reign of Terror,” the era of South African apartheid, and the two centuries of American slavery.’  This crackpot bigotry could be brushed aside as pathetic, except for the terrible har it can cause.”

Ponsor detailed how Lively had “worked with elements in Uganda who share some of his views to try to repress freedom of expression by LGBTI people in Uganda, depriving them of the protection of the law, and render their very existence illegal.”

However, Ponsor concluded, after discovery had been finished, it appears that a small number of email exchanges were all that would link Lively’s anti-gay activities in Uganda with the United States, and the judge considered this inadequate, particularly in light of a recent U.S. Supreme Court decision, Kiobel v Royal Dutch Petroleum Company, 133 S. Ct. 1659 (2013). In that case, a group of residents of Ogoniland, a region of Nigeria, tried to sue two international oil companies in a U.S. federal court under the ATS for engaging in the destruction of the local environment in the course of operations of a subsidiary in Nigeria jointly owned by the companies.  Both the oil companies conduct extensive business activities in the U.S., although they are incorporated and headquartered elsewhere.  The plaintiffs in that case alleged that for years, “the two respondent corporations, acting outside the United States, aided and abetted the Nigerian military and police – providing supplies, transportation, and compensation – in carry out beatings, rapes, murders, and arbitrary arrests of residents, including the four petitioners.”

Awful stuff. But the Supreme Court, in an opinion by Chief Justice John Roberts, found that the corporations’ business activities in the U.S. were insufficient to give a federal court jurisdiction to hold them to account for activities that took place entirely in Nigeria.

The ATS, adopted as part of a 1789 statute that first set up the federal courts below the level of the Supreme Court and specified their jurisdiction, states that “the district courts shall have original jurisdiction of 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.” This statute, notably, does not say anything about who can be sued for such a tort under the ATS, specifying only that people who are not U.S. citizens (“aliens”) can file a lawsuit, and that the case has to involve a violation of “the law of nations or a treaty of the United States.”  Since then the Court has frequently wrestled with the question whether that statute allows a foreign national to file suit in a U.S. court for something that has been done to them outside the U.S..

Roberts invoked “the presumption against extraterritorial application,” under which U.S. courts will not allow lawsuits for events taking place outside the U.S. unless the particular law in question contains a “clear indication of an extraterritorial application.” And Roberts stated that there was “no indication that the ATS was passed to make the United States a uniquely hospitable forum for the enforcement of international norms.”  In that case, the Court pointed out, the defendants were foreign corporations, and all of their conduct at issue in the case took place in Nigeria.

Judge Ponsor acknowledged distinctions in Lively’s case. He is a U.S. citizen living in Massachusetts, he has published incendiary anti-gay books in the U.S. that created an international reputation for him, leading anti-gay individuals from Uganda to contact him and invite him to come to their country to lead an anti-gay crusade, and as part of this process, he received emails from them in the U.S. and sent emails from the U.S.  But the judge did not think these distinctions sufficient to confer jurisdiction, in light of the Supreme Court’s ruling and some rulings by lower federal courts in similar cases.

“In this case, now that discovery is complete, the record reveals that Defendant supplied no financial backing to the detestable campaign in Uganda,” wrote the judge, “he directed no physical violence, he hired no employees, and he provided no supplies or other material support.  His most significant efforts on behalf of the campaign occurred within Uganda itself, when he appeared at conferences, meetings, and media events.  The emails sent from the United States providing advice, guidance, and rhetorical support for the campaign on the part of others in Uganda simply do not rise to the level of ‘force’ sufficient to displace the presumption against extraterritorial application.”

Indeed, he pointed out, with the world now “wrapped in a vast network of internet communications,” allowing jurisdiction in a case like this would render the presumption against extraterritoriality a “fiction.” The judge was also concerned about the foreign policy implications of letting foreign nationals sue in a U.S. court in a case like this, which involved “highly placed members of the Ugandan legislative and executive branches in complicity with Defendant.”  He also pointed out that the Ugandan judicial system “has weighed in vigorously on the local issues that Plaintiff wishes to have this court adjudicate here in the United States,” noting that the country’s supreme court had invalidated the anti-statute, concluding that there was not a legal quorum of legislators present when it was sneakily put through the voting process without sufficient advance notice.

The differences between this case and the oil companies case, and the particular factor of Lively being a U.S. citizen, suggest that this need not necessarily be the end of the case. The court noted that CCR had also asserted state law claims against Lively, and that those could be filed in state court.  CCR might also file an appeal in the U.S. Court of Appeals for the 1st Circuit, arguing that the trial judge took too narrow a view of ATS jurisdiction.  But this dismissal is a definite setback in a case that has been pending for several years.

Federal Court Denies Motion to Dismiss Tort Claim by Uganda Gay Group Against American Minister

Posted on: August 15th, 2013 by Art Leonard No Comments

U.S. District Judge Michael A. Ponsor (D. Mass.) has refused to dismiss a lawsuit filed on behalf of Sexual Minorities Uganda, a gay rights group, against Scott Lively, described in the complaint as an attorney, author, and evangelical minister who has allegedly work to “foment” what the plaintiff alleges to be “an atmosphere of harsh and frightening repression against LGBTI people in Uganda.”  Ponsor found that the allegations in the complaint were sufficient to put in play liability under the U.S. Alien Tort Statute (ATS), which authorizes federal courts to adjudicate claims by foreign individuals or entities against U.S. citizens for violations of the “law of nations.”  2013 U.S. Dist. LEXIS 114754 (D. Mass., Aug. 14, 2013).

According to the allegations of the complaint, Lively has visited Uganda several times and met with various private and government officials there and in the U.S., encouraging a compaign to enact harsh criminal laws and impose severe social repression on gay, lesbian, bisexual, transgender and intersexual people in Uganda.  He is alleged to have engaged in many of the relevant activities from his home in Massachusetts, including receiving and reviewing proposed legislation and communicating on strategy.  The complaint names specific individuals in Uganda with whom Lively is alleged to have conspired, including the legislative sponsor of the draconian “Anti-Homosexuality Bill.”

The complaint also claims some violations of Massachusetts  law, but the main focus is on the federal claims under the ATS.  The Center for Constitutional Rights represents the plaintiff, an umbrella group for various LGBTI community organizations in Uganda.  According to the complaint, such a case could not be brought against Lively in Uganda due to limitations of Ugandan law.

In moving to dismiss, Lively relied on the rather narrow focus of the ATS, 28 U.S.C. Section 1350,as it has been construed by the Supreme Court and lower federal courts.  The ATS gives federal courts jurisdiction of “any civil action by an alien for tort only, committed in violation of the law of nations or a treaty of the United States.”  Lively argues that nothing he was alleged to have done violates the “law of nations,” that the ATS does not extend to actions taken overseas, that the plaintiff organization lacks standing to bring the case, that the First Amendment shields him from any liability for his advocacy activities, and that the state law claims lack an adequate legal foundation.

Judge Ponsor rejected all of Lively’s arguments.  In deciding a motion to dismiss, the court assumes the truth of the plaintiff’s factual assertions, and then asks whether those facts, if proven, would be sufficient to support the legal claims that the plaintiff is asserting.  Ponsor emphasized that denying the motion to dismiss is not a ruling on the merits, and plaintiffs will have to prove their factual assertions after having a chance to conduct discovery, which would undoubtedly including getting a chance to examine Lively under oath about his activities and to get access to his correspondence with individuals in Uganda.

Most significantly, Ponsor concluded, based on a review of international legal materials, “widespread, systematic persecution of LGBTI people constitutes a crime against humanity that unquestionably violates international norms,” and that a review of “applicable authorities” shows that “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.”  Ponsor also found that persecution can be considered a crime against humanity if it is “part of a widespread or systematic attack directed against any civilian population.”

“Defendant argues that persecution based on sexual orientation or gender identity has not been sufficiently recognized under international law to be actionable under the ATS,” wrote Ponsor.  “It is true that many of the international treaties and instruments that provide jurisdiction over crimes against humanity list particular protected groups without specifying LGBTI people,” but “virtually all of these instruments provide savings clauses,” quoting, as an example, the Rome Statute, which, after listing protected characteristics, mentions “other grounds that are universally recognized as impermissible under international law” in its definition.  “Even when they do not” list sexual orientation or gender identity, he wrote, “international courts have interpreted the identity of the group requirement broadly to encompass persecution of a discrete identity.”

“Significantly,” he continued, “the boundaries of persecution are almost always defined by those carrying out the persecution against a particular group. . .  This fact strongly argues in favor of a generous interpretation of what groups enjoy protection under international norms,” and he found “unpersuasive” the argument that such international norms would not today be construed to protect LGBTI people from systematic persecution.

Lively argued that because LGBTI people are subject to persecution in many countries, there is no clear international norm against such persecution.  “This argument is utterly specious,” wrote Ponsor, pointing out that Uganda’s highest court has itself ruled that gay and lesbian people are entitled to equal treatment under that country’s law.  “More importantly,” he wrote, “even a glance at the history of treatment of gays and lesbians makes it clear that the discrimination suffered by them is on a par with the treatment meted out to other groups, defined by religion, race, or some other accepted characteristic. . .  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 Lively’s case, the court found that the complaint’s allegations were sufficient to invoke jurisdiction under the ATS.  “The allegations feature Defendant’s active involvement in well orchestrated initiatives by legislative and executive branch officials and powerful private parties in Uganda, including elements of the media, to intimidate LGBTI people and to deprive them of their fundamental human rights to freedom of expression, life, liberty and property,” wrote the court, pointing out that jurisdiction had been extended to aiding and abetting such activity as well as those committing direct acts of persecution, referring to various prosecutions in international tribunals beginning with the Nuremburg proceedings after World War II.  In this case, the complaint alleges that Lively provided practical assistance, his role alleged to be “analogous to that of an upper-level manager or leader of a criminal enterprise,” who “participated in formulating the enterprise’s policies and strategies.”  Indeed, the complaint alleges that Lively had himself acknowledged that “his efforts made him instrumental in detonating ‘a nuclear bomb against the “gay” agenda in Uganda.'”

The Supreme Court has recently ruled that ATS has very limited extraterritorial application, but Judge Ponsor found that the allegations in this case were sufficient to meet the Court’s requirement of a nexus with the United States.  Lively is a U.S. citizen, resident in Massachusetts, and the complaint “alleges that the tortious acts committed by Defendant took place to a substantial degree within the United States, over many years, with only infrequent actual visits to Uganda.  The fact that the impact of Defendant’s conduct was felt in Uganda cannot deprive Plaintiff of a claim.  Defendant’s alleged actions in planning and managing a campaign of repression in Uganda from the United States are analogous to a terrorist designing and manufacturing a bomb in this country, which he then mails to Uganda with the intent that it explode there.”

The court found that Plaintiff’s own interests were affected by Lively’s alleged actions, and that Plaintiff also “has associational standing to bring claims on behalf of its members and the LGBTI community for injunctive relief” to prevent Lively from continuing his alleged actions intended to “strip away and/or deprive Plaintiff and LGBTI community in Uganda of their fundamental rights.”

Turning to Lively’s First Amendment argument, Ponsor wrote, “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. . .  Plaintiff contends that Defendant’s conduct has gone far beyond mere expression into the realm not only of advocacy of imminent criminal conduct, in this case advocacy of a crime against humanity, but management of actual crimes — repression of free expression through intimidation, false arrests, assaults, and criminalization of peaceful activity and even the status of being gay or lesbian — that no jury could find to enjoy the protection of the First Amendment.”

While “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,” wrote Ponsor, the 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.”

Judge Ponsor also concluded that it would be premature to dismiss the state law civil conspiracy and negligence claims in advance of discovery.  The judge referred the case to Magistrate Judge Kenneth P. Neiman for a pretrial scheduling conference to set out the schedule for discovery.

The case was first filed in 2012 in the federal district court in Springfield, Massachusetts.  Judge Ponsor, a senior district judge since 2011, is a graduate of Yale Law School. He was appointed to the federal bench by President Bill Clinton in 1994.