Uganda v. Lively, C.A. No. 12-CV-30051-MAP.

• Decision Date: 05 June 2017
• Docket Number: C.A. No. 12-CV-30051-MAP.
• Citation: 254 F.Supp.3d 262
• Parties: SEXUAL MINORITIES UGANDA, Plaintiff, v. Scott LIVELY, Defendant.
• Court: U.S. District Court — District of Massachusetts

254 F.Supp.3d 262

SEXUAL MINORITIES UGANDA, Plaintiff,

v.Scott LIVELY, Defendant.

C.A. No. 12-CV-30051-MAP.

United States District Court, D. Massachusetts.

Signed June 5, 2017

Baher Azmy, Pro Hac Vice, Jeena D. Shah, Pro Hac Vice, Pamela C. Spees, Pro Hac Vice, New York, NY, Daniel W. Beebe, Pro Hac Vice, Gina S. Spiegelman, Pro Hac Vice, Joshua Colangelo–Bryan, Pro Hac Vice, Kaleb McNeely, Pro Hac Vice, Mark S. Sullivan, Pro Hac Vice, Dorsey & Whitney LLP, New York, NY, Judith Brown Chomsky, Pro Hac Vice, The Law Offices of Judith Brown Chomsky, Elkins Park, PA, Luke F. Ryan, Sasson, Turnbull & Hoose, Northampton, MA, Christopher G. Betke, Coughlin & Betke, LLP, Boston, MA, for Plaintiff.

Horatio G. Mihet, Pro Hac Vice, Mathew D. Staver, Pro Hac Vice, Roger Gannam, Pro Hac Vice, Orlando, FL, Philip D. Moran, Law Offices of Philip D. Moran, Salem, MA, for Defendant

MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

PONSOR, U.S.D.J.

I. INTRODUCTION

Plaintiff Sexual Minorities Uganda, which uses the acronym "SMUG," is headquartered in Kampala, Uganda. It comprises member organizations seeking fair and equal treatment of lesbian, gay, bisexual, transgender, and intersex (LGBTI) people in that east African country. Defendant Scott Lively is an American citizen who has aided and abetted a vicious and frightening campaign of repression against LGBTI persons in Uganda.

Defendant's positions on LGBTI people range from the ludicrous to the abhorrent. He has asserted that "Nazism was in large part an outgrowth of the German homosexual movement,"¹ and that "[i]n seeking the roots of fascism we once again find a high correlation between homosexuality and a mode of thinking which we identify with Nazism."² 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."³

This crackpot bigotry could be brushed aside as pathetic, except for the terrible harm it can cause. The record in this case demonstrates that Defendant has worked with elements in Uganda who share some of his views to try to repress freedom of expression by LGBTI people in Uganda, deprive them of the protection of the law, and render their very existence illegal. He has, for example, proposed twenty-year prison sentences for gay couples in Uganda who simply lead open, law-abiding lives.

Plaintiff has filed this lawsuit under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, seeking monetary damages and injunctive relief based on Defendant's crimes against humanity. Defendant now seeks summary judgment in his favor arguing that, on the facts of record, the ATS provides no jurisdiction over a claim for injuries—however grievous—occurring entirely in a foreign country such as Uganda. Because the court has concluded that Defendant's jurisdictional argument is correct, the motion will be allowed.

Anyone reading this memorandum should make no mistake. The question before the court is not whether Defendant's actions in aiding and abetting efforts to demonize, intimidate, and injure LGBTI people in Uganda constitute violations of international law. They do. The much narrower and more technical question posed by Defendant's motion is whether the limited actions taken by Defendant on American soil in pursuit of his odious campaign are sufficient to give this court jurisdiction over Plaintiff's claims. Since they are not sufficient, summary judgment is appropriate for this, and only this, reason.⁴

II. FACTUAL BACKGROUND

The facts will be viewed in the light most favorable to Plaintiff, as required by Fed. R. Civ. P. 56. Few facts are actually in dispute.⁵ The summary below will concentrate mainly on actions allegedly taken by Defendant within the United States, since that is the focus of the ATS analysis.

It is undisputed that Defendant strongly opposes what he calls the "gay movement" and has spoken in numerous venues to express his view that "homosexual activism" is a "very fast-growing social cancer

" that has harmed America. ("Letter to the Russian People" (Ex. 3), Dkt. No. 293, Attach. 3.) He has, in addition, published several books on this topic, including Defend the Family: Activist Handbook (Ex. 9, Dkt. No. 293, Attach. 9) and Redeeming the Rainbow (Ex. 20, id. at Attach. 20), which expand on this theme. As noted above, in his book, The Pink Swastika: Homosexuality in the Nazi Party, he offers the bizarre argument that a fascistic and violent gay movement in pre-war Germany propelled the rise of Nazism. (Excerpts in Ex. 177, Dkt. No. 293, Attach. 189.) Some of his suggestions sink to bizarre depths, such as the following:

We can see that the roots of Nazism are fundamentally interrelated with the homosexuality of its philosophers.... (Although it may be mere coincidence, we are reminded that the Latin root of fascism is fasces , "a bundle of rods." A diminutive of fasces is "faggot," a common pejorative for homosexuals.)

(The Pink Swastika 141 (Ex. 177), Dkt. No. 293, Attach. 189 141.)

More chillingly, he has stated, "[T]he Bible treats homosexuality as a form of rebellion against God even worse (from God's perspective) than mass murder." (Scott Lively, "Is Homosexuality Worse than Mass Murder in the Bible?" (posted Dec. 9, 2014) (Ex. 2), Dkt. No. 293, Attach. 2).

Defendant's first contact with Uganda, so far as the record reveals, occurred in 2002, when he traveled there twice to participate in a conference, to give speeches, and to make media appearances in which he forcefully presented his execrable views about the supposed evils of homosexuality. No evidence suggests that the two appearances in Uganda in 2002 involved any significant activity in the United States, beyond—it may be inferred—receipt of the invitations and arrangements for travel.

In the years that followed these first trips to Uganda, Defendant traveled to other foreign countries attending meetings and making speeches to encourage persecution of LGBTI people. He eventually built somewhat of an international reputation for his virulently hateful rhetoric. During this period the record contains negligible evidence of actions taken by Defendant from the territory of the United States directed specifically at Uganda or the LGBTI community there.

In October of 2007, Defendant and Stephen Langa, Executive Director of the Family Life Network in Uganda, exchanged emails discussing another possible trip to Uganda by Defendant to attend a contemplated conference—again, on the supposed dangers of homosexuality. In December of 2007, they exchanged views on who should be invited to the conference, and Defendant sent Langa a copy of his book, Defend the Family: Activist Handbook.

At the end of 2008, the Ugandan High Court issued an opinion awarding monetary damages to victims of police violence that occurred at the home of the SMUG founder, Victor Mukasa. The opinion also confirmed the right of LGBTI people in Uganda to seek redress in the courts for violations of their civil liberties. Plaintiff alleges that as a result of this court decision, Defendant's associates in Uganda became alarmed. An exchange of emails ensued in December 2008, through which Defendant communicated with Martin Ssempa, a United States citizen and Ugandan pastor who, to some extent, shared Defendant's views. Ssempa sought permission to make copies of Defendant's book Seven Steps to Recruit Proof Your Child.

The book laid out Defendant's baseless and contemptible claim that gay people present special risks to minors.⁶ Ssempa also requested additional resource materials from Defendant regarding the dangers supposedly posed by gay persons generally.

In 2009, Langa organized the conference in Uganda discussed by Defendant and him back in 2007. The event was billed as a "Seminar on Exposing the Homosexual Agenda," and Defendant again appeared and spoke. After his return. Defendant had further email exchanges with Ssempa, as well as with James Buturo, a Ugandan cabinet minister, and David Bahati, a member of the Ugandan parliament. These internet communications discussed a draft piece of legislation being placed before the Ugandan parliament, called the "Anti–Homosexuality Bill" ("AHB"), proposing the death penalty for homosexuality. Defendant reviewed and offered suggestions regarding the draft, recommending certain modifications to soften public backlash, including a reduction of the penalty from death to twenty years imprisonment.⁷

The record thereafter contains evidence of a dozen or so substantive emails in the 2009–2014 time frame between Defendant and individuals in Uganda discussing ways to move the AHB forward, to draft modified legislation aimed at repressing LGBTI people in Uganda, and to deter advocacy on behalf of LGBTI people and exercise by them of their civil rights. So far as the record indicates, these substantive emails were not numerous or frequent. A larger number of social, non-substantive emails were also exchanged, as well as emails communicating internet links to articles or attaching copies of written material. Plaintiff's counsel has identified specific emails sent by Defendant in aid of the Ugandan campaign in December 2009; July and August 2010; February, July, August, and December 2012; August 2013; and April 2014.⁸

To summarize now that discovery has closed, the evidence that the actions of the Defendant have "touched and concerned" the territory of the United States is that Defendant is a citizen of the United States living in Massachusetts, that he traveled from the United States to Uganda twice in 2002 and once in 2009, that he sent copies of his writings and other material to Uganda on a few occasions, and that over twelve years he transmitted emails, probably from the United States, to various people in Uganda. Of these perhaps a score, at most, included...