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.