13-2503 Petition

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Date Filed: 12/06/2013
Entry ID: 5785627
13-2503 NO. ________________ ________________________________________________________________
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT __________________________________________________________________ IN RE SCOTT LIVELY, Individually and as President of Abiding Truth Ministries __________________________________________________________________ PETITION FOR WRIT OF MANDAMUS to the United States District Court for the District of Massachusetts, Springfield Division, Honorable Michael A. Ponsor, Case No. 3:12-cv-30051-MAP _________________________________________________________________ Mathew D. Staver Anita L. Staver Horatio G. Mihet Liberty Counsel P.O. Box 540774 Orlando, FL 32854 (800) 671-1776 Telephone (407) 875-0770 Facsimile Stephen M. Crampton Liberty Counsel 100 Mountain View Road Suite 1845 Lynchburg, VA 24502 (434) 592-7000 Telephone (434) 592-7700 Facsimile
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TABLE OF CONTENTS
TABLE OF CITATIONS .
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CORPORATE DISCLOSURE STATEMENT . viii RELIEF SOUGHT ISSUES PRESENTED .. FACTS NECESSARY TO UNDERSTAND ISSUES PRESENTED ...... I. II. III. SMUG AND ITS ALLEGED PERSECUTION IN UGANDA ....... LIVELYS ALLEGED CONDUCT IN UGANDA . LIVELYS ALLEGED CONDUCT IN THE U.S. ...... 1 1 2 2 3 5 5 6
PROCEDURAL HISTORY .. REASONS WHY THE WRIT SHOULD ISSUE . I. LIVELY HAS A CLEAR AND INDISPUTABLE RIGHT TO ISSUANCE OF THE WRIT .. A. The District Court is Clearly without Jurisdiction because the Relevant Conduct Allegedly Took Place in Uganda The District Court is Clearly without Jurisdiction because there is no Clearly Defined and Universally Accepted Prohibition on Persecution Based upon Sexual Orientation .. Livelys Alleged Conduct is Core Political Speech Protected by the First Amendment .
B.
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C.
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II.
LIVELY HAS EXHAUSTED ALL ALTERNATIVES AND HAS NO OTHER ADEQUATE MEANS TO AVOID IRREPARABLE HARM ..
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III.
MANDAMUS IS APPROPRIATE UNDER THE CIRCUMSTANCES .
29 30 31
CONCLUSION . CERTIFICATE OF SERVICE .
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TABLE OF CITATIONS
CASES Adhikari v. Daoud & Partners, 09-CV-1237, 2013 WL 4511354 (S.D. Tex. Aug. 23, 2013) ............................................................................ Ahmed-Al-Khalifa v. Queen Elizabeth II, 5:13-CV-103-RS-CJK, 2013 WL 2242459 (N.D. Fla. May 21, 2013) ..................................... Ahmed-Al-Khalifa v. Obama, 1:13-CV-49-MW/GRJ, 2013 WL 3797287 (N.D. Fla. July 19, 2013) ..................................................................... Al Shimari v. CACI Int'l, Inc., -- F.Supp.2d --, 1:08-CV-827 GBL/JFA, 2013 WL 3229720 (E.D. Va. June 25, 2013) .. Balintulo v. Daimler AG, 727 F.3d 174 (2d Cir. 2013) . Boos v. Barry, 485 U.S. 312 (1988) .............................................................. Brandenburg v. Ohio, 395 U.S. 444 (1969) .................................................. Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367 (2004) ... Christopher v. Stanley-Bostitch, Inc., 240 F.3d 95 (1st Cir. 2001) ............... Doe v. Exxon Mobil Corp., 527 F. App'x 7 (D.C. Cir. 2013) ........................ Doe v. Exxon Mobil Corp., 654 F.3d 11 (D.C. Cir. 2011) ............................ Elrod v. Burns, 427 U.S. 347 (1976) ............................................................. Flores v. S. Peru Copper Corp., 414 F.3d 233 (2d Cir. 2003) ...................... Forti v. Suarez-Mason, 694 F. Supp. 707 (N.D. Cal. 1988) .......................... Giraldo v. Drummond Co., Inc., 2:09-CV-1041-RDP, 2013 WL 3873960 (N.D. Ala. July 25, 2013)
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8, 13
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8, 13 passim 23 22 6, 7 26 13, 17 13, 17 29 17 16 8, 11 12, 13
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Hourani v. Mirtchev, No. 10-1618, -- F. Supp.2d --, 2013 WL 1901013 (D.D.C. May 8, 2013) ......................................................................... In re Asbestos Sch. Litig., 46 F.3d 1284 (3d Cir. 1994)
11 7, 25, 28 7, 26-27 7, 15, 27-28 6, 7, 8 29
In re Pearson, 990 F.2d 653 (1st Cir. 1993) . In re Perry, 859 F.2d 1043 (1st Cir. 1988)
In re Recticel Foam Corp., 859 F.2d 1000 (1st Cir. 1988) ... In re Sony BMG Music Entmt, 564 F.3d 1 (1st Cir. 2009) ........................... In re Terrorist Attacks on September 11, 2001, 714 F.3d 118 (2d Cir. 2013) ...................................................................................... In re U.S., 426 F.3d 1 (1st Cir. 2005) .... Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013) . Mamani v. Berzain, 654 F.3d 1148 (11th Cir. 2011) .................................... Mohammadi v. Islamic Republic of Iran, -- F.Supp.2d --, CIV.A. 09-1289 BAH, 2013 WL 2370594 (D.D.C. May 31, 2013) .. Morrison v. Natl Austl. Bank Ltd., 130 S. Ct. 2869 (2010) .......................... Muntslag v. D'Ieteren, S.A., 12-CV-07038 TPG, 2013 WL 2150686 (S.D.N.Y. May 17, 2013) .................................................................... Mwangi v. Bush, CIV.A. 5:12-373-KKC, 2013 WL 3155018 (E.D. Ky. June 18, 2013) ..................................................................................... Mwani v. Bin Laden, -- F.Supp.2d --, CIV.A. 99-125 JMF, 2013 WL 2325166 (D.D.C. May 29, 2013) ........................................................ N. A. A. C. P. v. Claiborne Hardware Co., 458 U.S. 886 (1982) ..................
16 7, 26 passim passim
8 10, 11
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Nat'l Nutritional Foods Ass'n v. Whelan, 492 F. Supp. 374 (S.D.N.Y. 1980) .................................................................................. Presbyterian Church of Sudan v. Talisman Energy, Inc., 453 F. Supp.2d 633 (S.D.N.Y. 2006) ........................................................................... Ramirez v. Rivera-Dueno, 861 F.2d 328 (1st Cir. 1988) ............................... Snyder v. Phelps, 131 S. Ct. 1207 (2011) ...................................................... Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) ............................................ Souryal v. Torres Advanced Enter. Solutions, LLC, 847 F. Supp.2d 835 (E.D. Va. 2012) ................................................................................... Union Carbide Corp. v. U.S. Cutting Serv., Inc., 782 F.2d 710 (7th Cir. 1986) . United States v. Horn, 29 F.3d 754 (1st Cir. 1994) ....................................... United States v. Spock, 416 F.2d 165 (1st Cir. 1969) .................................... Vietnam Assn for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104 (2d Cir. 2008) ............................................................................... Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995) ............................... STATUTES 28 U.S.C. 1350 ... 28 U.S.C. 1651 ... RULES Fed. R. App. P. 21 . Fed. R. App. P. 26.1 ..
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27 15 23 passim
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passim 1
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OTHER AUTHORITIES 16 Fed. Prac. & Proc. Juris. 3932.2 (2d ed.) ............................................... Bassiouni, Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions, 3 Duke J. Comp. & Int'l L. 235, 260-61 (1993) .................................................. 15
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CORPORATE DISCLOSURE STATEMENT Pursuant to Fed. R. App. P. 26.1, Petitioner Scott Lively, in his capacity as President of Abiding Truth Ministries, states that Abiding Truth Ministries has no parent corporation, is not publicly traded, and no publicly held corporation owns 10% or more of its stock.
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RELIEF SOUGHT Pursuant to 28 U.S.C. 1651 and Fed. R. App. P. 21, Petitioner Scott Lively, individually and as President of Abiding Truth Ministries (collectively Lively), respectfully applies for a writ of mandamus directing the Honorable Judge Michael A. Ponsor, Senior District Judge of the United States District Court for the District of Massachusetts, to vacate his Order denying Livelys Motion to Dismiss the First Amended Complaint filed by Sexual Minorities Uganda (SMUG), and to dismiss this action for lack of subject matter jurisdiction and/or failure to state a claim. The lower court usurped its authority in refusing to dismiss this action, because it is clearly without jurisdiction and SMUGs claims are firmly foreclosed by the First Amendment. An extraordinary and immediate intervention by this Court is necessary because Lively has exhausted all alternatives and has no other viable means to confine the lower court to the lawful exercise of its proscribed jurisdiction, and to safeguard his First Amendment rights. ISSUES PRESENTED 1) Did the district court usurp its authority by concluding that Livelys
U.S. citizenship and lawful domestic conduct confer Alien Tort Statute jurisdiction over alleged crimes against humanity committed by foreign actors against foreign victims on foreign soil, when all other courts have reached the opposite conclusion? 2) Did the district court exceed its jurisdiction by inferring a clearly
defined and universally accepted international norm against persecution based
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upon sexual orientation or transgender grounds from the silent savings clause of an international treaty, when the United States has expressly rejected that treaty, no other court has expanded the treaty in this manner or imposed such liability, and a majority of nations do not proscribe such conduct? 3) Does the First Amendment still protect speech that is unfavorable to
certain groups and public advocacy of laws that restrict their rights? FACTS NECESSARY TO UNDERSTAND THE ISSUES PRESENTED I. SMUG AND ITS ALLEGED PERSECUTION IN UGANDA. SMUG, a Ugandan umbrella organization claiming to represent Ugandan sexual minorities, has filed this lawsuit under the Alien Tort Statute, 28 U.S.C. 1350 (ATS), in a U.S. court, against a U.S. citizen, for the crime against humanity of persecution. (Amended Complaint, 1-3, attached as Exhibit 1). SMUG claims that, on the basis of sexual orientation and transgender identity, it and its constituents were persecuted in Uganda by Ugandan police, Ugandan members of Parliament and other high-ranking Ugandan government officials. (Ex. 1, 165228). In the section of its Complaint titled Severe Deprivation of Fundamental Rights, SMUG alleges eight specific instances of persecution, all of which took place entirely outside the sovereign borders of the United States, in Uganda. (Id.) Included among these are: raids of homosexual-rights conferences, allegedly perpetrated by Ugandan police (id. at 165-185); arrests of homosexual leaders, allegedly perpetrated by Ugandan police and local authorities (id. at 186-193,
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209-214); [c]rack-down on media [and] advocacy by the Ugandan Deputy Attorney General (id. at 199-208); and frequent and sensationalistic outings of homosexuals and lesbians by two Ugandan tabloids. (Id. at 215-225). SMUG has successfully sought redress in Ugandan courts against alleged perpetrators of these crimes, and won a high profile ruling by the High Court of Uganda which held that gays and lesbians like anyone else could challenge the unlawful conduct of the authorities [and] that they simply enjoyed the basic protections of law, (id. at 34), as well as a separate victory in which the Ugandan High Court issued a permanent injunction preventing [tabloids] from identifying LGBTI persons and ordering the tabloid to pay damages. (Id. at 221). II. LIVELYS ALLEGED CONDUCT IN UGANDA. In this action, SMUG now seeks to hold Lively an American author and minister liable for the same eight acts of persecution. (Id. at 1). However, SMUG does not claim that Lively himself perpetrated any of these crimes. (Id. at 165-228). Nor does SMUG claim that Lively directly assisted the perpetrators, such as by disclosing to them the identity and location of the alleged victims, or by inciting them to imminent lawless action. (Id.) Indeed, SMUG does not claim that Lively has ever even met or communicated with the alleged perpetrators. (Id.) Instead, SMUG claims only that on three visits to Uganda (in 2002 and 2009), Lively publicly said false and offensive things about homosexuals, including that they have violent tendencies and a predilection for child sexual violence. (Id. at
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22-23, 43-93). SMUG also claims that Lively schemed, plotted and campaigned with four Ugandan citizens (two government officials and two private individuals) to vilify sexual minorities in Uganda, and to attempt to enact more restrictive laws against homosexual conduct and advocacy in Uganda. (Id.) These four alleged co-conspirators are not the same as the alleged perpetrators of the eight acts of persecution. (Compare Ex. 1, 94-164 with 165-228). Moreover, the law on homosexual conduct and advocacy in Uganda today is exactly the same as it was prior to Livelys first visit in 2002. (Id. at 40). SMUG describes in great detail an Anti-Homosexuality Bill contemplated by the Ugandan Parliament following Livelys visit in 2009, which would have imposed further restrictions on homosexual advocacy and punished certain violent homosexual acts with the death penalty. (Id. at 9, 37-38, 68-69, 112-118, 159164). SMUG acknowledges that Lively did not support this proposed law. (Id. at 9). Lively instead has publicly opposed the proposed law, publicly condemned any and all violence against homosexuals, and publicly praised the Ugandan courts for siding with SMUG and punishing individuals who perpetrate crimes. (Memo. in Support of Motion to Dismiss, p. 12, attached as Exhibit 2; Answer and Defenses, 9, 37-38, 86, 140, 161, attached hereto as Exhibit 3). It is undisputed that the Anti-Homosexuality Bill was never enacted in any form (Ex. 1, 40). Accordingly, SMUGs theory of liability against Lively for the eight unconnected acts of persecution boils down to a claim that Livelys public speeches
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opposing the promotion of sexual behaviors, and his unsuccessful advocacy for the enactment of laws that restrict homosexual rights, created a hateful environment in which people that Lively has never met perpetrated crimes of persecution, for which they have been duly punished in Ugandan courts (Id. at 93): By repeatedly characterizing the LGBTI community as rapists and murderers and child abusers not to mention possessing the genocidal tendencies of the Nazis and Rwandan conspirators LIVELY deliberately invited, induced and encouraged a proportional response from Ugandans i.e., severe repression, arrest and certainly even violence. III. LIVELYS ALLEGED CONDUCT IN THE UNITED STATES. The only conduct that Lively is alleged to have undertaken in the United States is that: (1) he is a U.S. citizen residing in Massachusetts (Ex. 1, 22); (2) he wrote and spoke publicly about his visits to Uganda (id. at 55-56); (3) he reviewed and commented on a draft of the never-enacted Anti-Homosexuality Bill (id. at 140, 161)1; and (4) he advised two Ugandan individuals (not among those allegedly perpetrating the eight acts of persecution) in their unsuccessful attempts to enact further legal restrictions on homosexual conduct in Uganda (id. at 55). PROCEDURAL HISTORY Lively filed a Motion to Dismiss on August 9, 2012 (Ex. 2), which was denied on August 14, 2013. (Order attached as Exhibit 4). Lively then filed a Motion to Certify Interlocutory Appeal on September 6, 2013 (attached as Exhibit
Livelys comment was an open letter to one member of the Ugandan Parliament, posted online, in which Lively urged departure from the harsh penalties proposed in the now defunct Anti-Homosexuality Bill. (Ex. 3, 140, 161).
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5), which was summarily denied on September 23, 2013. (Docket Sheet at dkt. # 71, attached as Exhibit 6). Lively then filed a Motion for Reconsideration on September 24, 2013 (attached as Exhibit 7), which the court again summarily denied on October 9, 2013. (Ex. 6 at dkt. # 75). The district court then required the parties to submit a Joint Discovery Plan on November 1, 2013 (attached as Exhibit 8), a modified version of which was entered on November 6, 2013 (attached as Exhibit 9). This Petition followed. REASONS WHY THE WRIT SHOULD ISSUE Because a writ of mandamus is a drastic and extraordinary remedy, Lively must demonstrate three things: (1) his right to issuance of the writ is clear and indisputable; (2) he has no other adequate means to attain the relief; and (3) the writ is appropriate under the circumstances. Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380-81 (2004). These hurdles, however demanding, are not insuperable. Id. at 381. [T]he mandamus power is not some vestigial remnant of a bygone era, to be wrapped in cellophane and left untouched by human hands. In re Recticel Foam Corp., 859 F.2d 1000, 1005 (1st Cir. 1988). Mandamus is particularly appropriate in three instances, each of which is present here. First, ATS jurisprudence urge[s] greater appellate oversight through use of mandamus, because the ATS places federal judges in an unusual lawmaking role as creators of federal common law, and presents risks of adverse foreign policy consequences. Balintulo v. Daimler AG, 727 F.3d 174, 187 (2d Cir.
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2013) (emphasis added) (ordering dismissal of ATS case for lack of jurisdiction). Second, mandamus has been traditionally employed to confine the court to a lawful exercise of its prescribed jurisdiction. Cheney, 542 U.S. at 381; see also, In re U.S., 426 F.3d 1, 5 (1st Cir. 2005) (judicial authority is a classic exceptional instance justifying interlocutory intervention). Third, in free-speech cases interlocutory appeals sometimes are more freely allowed, and writs of mandamus sometimes more freely issued, Union Carbide Corp. v. U.S. Cutting Serv., Inc., 782 F.2d 710, 712 (7th Cir. 1986), where the challenged order restricts speech, In re Perry, 859 F.2d 1043, 1047 (1st Cir. 1988) (mandamus was appropriate to review meritorious First Amendment claim), or where, as here, the mere pendency of litigation and threat of liability is likely to chill protected speech. In re Asbestos Sch. Litig., 46 F.3d 1284, 1295 (3d Cir. 1994) (ALITO, J.) (granting mandamus and requiring immediate dismissal of action that sought to punish protected speech). This Petition involves all three of these elements, and Lively can overcome each of the hurdles to mandamus relief. The Petition should therefore be granted. I. LIVELY HAS A CLEAR AND INDISPUTABLE RIGHT TO ISSUANCE OF THE WRIT. To demonstrate a clear and indisputable right to mandamus relief, Lively must show that the challenged order is palpably erroneous. In re Pearson, 990 F.2d 653, 656 (1st Cir. 1993). Lively can meet his burden by demonstrating that the lower court was clearly without jurisdiction, or exceeded its discretion to such a degree that its actions amount to a usurpation of power. In re Recticel Foam Corp.,
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859 F.2d at 1006 (internal quotes omitted). A. The District Court is Clearly without Jurisdiction because the Relevant Conduct Allegedly Took Place in Uganda.
On April 17, 2013, a seismic shift altered the Alien Tort Statute landscape, and it was an earthquake that has shaken the very foundation of [SMUGs] claims against [Lively]. Giraldo v. Drummond Co., Inc., 2:09-CV-1041-RDP, 2013 WL 3873960, *1 (N.D. Ala. July 25, 2013). The Supreme Court decided Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013), in which it held that the ATS does not reach conduct occurring in the territory of a foreign sovereign. Id. at 1664. Because the ATS is strictly jurisdictional, the Court held that it does not provide federal courts with jurisdiction over international law claims in which all of the relevant conduct took place outside the United States. Id. at 1664, 1669. In the aftermath of this seismic shift, dozens of courts across the country immediately dismissed pending ATS cases for lack of subject matter jurisdiction.2
2
The post-Kiobel dismissals for lack of jurisdiction are far too numerous to list here exhaustively. See e.g., Al Shimari v. CACI Int'l, Inc., -- F.Supp.2d --, 1:08-CV-827 GBL/JFA, 2013 WL 3229720, *7 (E.D. Va. June 25, 2013) (The application of Kiobel to this case compels the dismissal of Plaintiffs [ATS] claims invoking international law for lack of subject matter jurisdiction); Mohammadi v. Islamic Republic of Iran, -- F.Supp.2d --, CIV.A. 09-1289 BAH, 2013 WL 2370594, *15 (D.D.C. May 31, 2013) (vacating default judgment and dismissing ATS claims for lack of jurisdiction); Giraldo v. Drummond Co., Inc., 2:09-CV-1041-RDP, 2013 WL 3873960, *8-9 (N.D. Ala. July 25, 2013) (granting summary judgment for lack of jurisdiction); Muntslag v. D'Ieteren, S.A., 12-CV-07038 TPG, 2013 WL 2150686, *1-2 (S.D.N.Y. May 17, 2013) (dismissing ATS claims for lack of jurisdiction); Ahmed-Al-Khalifa v. Queen Elizabeth II, 5:13-CV-103-RS-CJK, 2013 WL 2242459, *1 (N.D. Fla. May 21, 2013) (same). See also, note 4, infra.
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In fact, with only two exceptions, every contested post-Kiobel ATS jurisdictional claim has resulted in dismissal. See note 2, supra, and note 4, infra. The first exception, Mwani v. Bin Laden, -- F.Supp.2d --, CIV.A. 99-125 JMF, 2013 WL 2325166 (D.D.C. May 29, 2013), involved facts not present here an attack upon a U.S. embassy and U.S. citizens in Kenya, and thus an attack directed at the United States government, with the intention of harming this country and its citizens. Id. at *3-4. But even with that peculiar U.S. connection, the court sua sponte certified its decision for interlocutory appeal because the subject matter jurisdiction issue is one of first impression, and there may be a substantial difference of opinion among judges. Id. at *4. In contrast, the court here twice refused interlocutory certification, even after Lively requested it. (Ex. 5, 6, 7). The second exception is the district courts decision in this case. The court found that SMUGs claim could survive Kiobel because (1) unlike the British and Dutch corporations [in Kiobel], [Lively] is an American citizen (Ex. 4, p. 38); and (2) [SMUG] has alleged that substantial practical assistance was afforded to the commission of the crime against humanity from the United States. (Id. at 44). This conclusion is palpably erroneous. What matters under Kiobel is neither the citizenship of the defendant, nor the locus of preparatory or secondary conduct, but where the relevant conduct occurred. Kiobel, 133 S.Ct. at 1669 (emphasis added). Under Kiobel, the citizenship of the defendants is merely an irrelevant factual distinction, because the [Kiobel] Court did not suggest that a defendants
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citizenship has any relevance to the presumption against extraterritoriality, and it instead stated over and over that the ATS bars suits where the relevant conduct occurs abroad. Balintulo, 727 F.3d at 190 & n.24 (italics in original). Kiobels heavy reliance on Morrison v. Natl Austl. Bank Ltd., 130 S. Ct. 2869 (2010), demonstrates that the mere fact that some conduct occurred in the U.S. is not enough to overcome the extraterritoriality bar. Morrison involved a Florida corporation which allegedly undertook deceptive conduct in Florida, in furtherance of securities fraud transactions that occurred abroad. 130 S. Ct. at 2875-76, 2883-84. The Supreme Court held that those U.S. contacts (i.e., citizenship and deceptive preparatory acts), were not enough to overcome the extraterritorial bar because it is a rare case of prohibited extraterritorial application that lacks all contact with the territory of the United States, and the presumption against extraterritorial application would be a craven watchdog indeed if it retreated to its kennel whenever some domestic activity is involved in the case. Id. at 2884 (italics in original). The determinative question, therefore, is not whether some domestic activity took place, but whether the conduct that was the focus of congressional concern took place domestically. Id. (emphasis added). In Morrison, the focus of the Exchange Act [was] not upon the place where the deception originated, but upon purchases and sales of securities. Id. (emphasis added). Since all of the allegedly fraudulent purchase and sale transactions occurred abroad, the extraterritorial presumption could not be met with other deceptive conduct by a U.S. citizen in the
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U.S. Id. 3 Here, the focus of congressional concern in the ATS is conduct violating the law of nations, 28 U.S.C. 1350, which, as discussed in section I(B), infra, means only violations of clearly defined and universally accepted international norms. Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004). Thus, the only way that SMUG could have invoked the subject-matter jurisdiction of the lower court was to allege that human rights violations that is, the eight alleged acts of persecution occurred on U.S. soil. See Giraldo, 2013 WL 3873960, at *8 (where a complaint alleges activity in both foreign and domestic spheres, an extraterritorial application of a statute arises only if the event on which the statute focuses did not occur abroad) (italics in original) (ATS claims did not touch and concern the U.S. because the ATS focuses on the . . . violations of the law of nations, which occurred abroad, in Colombia). But SMUG alleged exactly the opposite that all eight alleged acts of persecution took place in Uganda, at the hands of Ugandan actors, and against Ugandan victims. (Ex. 1, 165-228). In light of that undisputed fact, the district courts focus on Livelys citizenship and his alleged practical assistance of Ugandan actors from the United
3
See also, Hourani v. Mirtchev, No. 10-1618, -- F. Supp.2d --, 2013 WL 1901013, *5 (D.D.C. May 8, 2013) (U.S. citizenship, the location of the enterprise, and laundering money through accounts in the United States cannot change the essentially foreign nature of the racketeering activity in this case.); Souryal v. Torres Advanced Enter. Solutions, LLC, 847 F. Supp.2d 835, 840 (E.D. Va. 2012) (barring employment claims brought by a foreign employee despite the fact that decisions on employment were made in the U.S. because no matter where the allegedly unlawful decision is made, it is implemented at the claimants worksite).
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States was palpably erroneous. Even the most generous reading of SMUGs Amended Complaint cannot yield an inference, let alone an express allegation, that Lively did anything illegal in the U.S., much less committed a crime against humanity. SMUGs handful of U.S.-based allegations are inventoried at p. 5, supra. But, neither speaking or writing about visits to Uganda, nor writing books that allegedly vilify sexual conduct with false information, nor reviewing and commenting upon proposed-but-never-enacted legislation, nor assisting others in pursuing never-enacted legislation, is a crime against humanity. Indeed, as demonstrated in section I(C), infra, such activities would be protected as core political speech even if the legislation in question had been enacted into law, which indisputably has never happened here. And, in any event, Livelys alleged domestic conduct in this case pales in comparison with conduct found insufficient for jurisdiction elsewhere. See, e.g., Giraldo, 2013 WL 3873960, at *5-6 (no ATS jurisdiction even where U.S. mining operator and its U.S.-based individual officers allegedly assisted Colombian paramilitaries in the killing of Columbian civilians by providing logistical support, funds and decisional leadership from the U.S.). The palpable jurisdictional error of the district court is further evidenced by the fact that it stands alone in its erroneous reading of Kiobel. Every other court that has examined these same asserted grounds for circumventing Kiobel and there have been at least eight has rejected them as a matter of law, concluding that neither the American citizenship of the defendant, nor his alleged planning,
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preparatory or assistive acts in the U.S., are sufficient to confer ATS jurisdiction over human rights abuses that took place on foreign soil.4 So obvious and grave was the district courts jurisdictional error here, that this Courts neighboring Circuit has employed the extraordinary mandamus procedure to correct a similarly errant trial court in a case involving much more and sinister U.S. conduct. In Balintulo, foreign victims of crimes against humanity sought to resist The eight cases are discussed more fully in Livelys Motion to Certify Interlocutory Appeal (Ex. 5, pp. 4-11). In brief, they are: Balintulo, 727 F.3d at 189193 (Kiobel plainly bars the plaintiffs [ATS] claims against U.S. corporate defendants who allegedly took affirmative steps in the U.S. to aid and abet crimes against humanity in South Africa); Doe v. Exxon Mobil Corp., 527 F. App'x 7 (D.C. Cir. 2013) (vacating in light of Kiobel an earlier decision in Doe v. Exxon Mobil Corp., 654 F.3d 11, 26 (D.C. Cir. 2011), which held that Indonesian plaintiffs could sue a U.S. company for human rights abuses in Indonesia); Giraldo, 2013 WL 3873960, at *5, 8 (no ATS jurisdiction to entertain claims that Defendants (citizens and entities from the United States) committed acts in the United States in furtherance of human rights abuses in Colombia, because the alleged violations of international law took place in Columbia); Adhikari v. Daoud & Partners, 09-CV1237, 2013 WL 4511354 (S.D. Tex. Aug. 23, 2013) (Kiobel precludes ATS jurisdiction over claims against a U.S. company alleged to have planned and coordinated within the U.S. violations of international law in Nepal and Iraq); Al Shimari v. CACI Int'l, Inc., -- F.Supp.2d --, 1:08-CV-827 GBL/JFA, 2013 WL 3229720 (E.D. Va. June 25, 2013) (dismissing for lack of jurisdiction ATS claims of Iraqi citizens alleging that U.S. contractor and its Virginia employees planned and coordinated from the U.S. war crimes in Iraq); Ahmed-Al-Khalifa v. Queen Elizabeth II, 5:13-CV-103-RS-CJK, 2013 WL 2242459, *1 (N.D. Fla. May 21, 2013) (dismissing foreign plaintiffs ATS claims against President Obama and U.S. corporations who allegedly aided and abetted from the U.S. the South African apartheid); Ahmed-Al-Khalifa v. Obama, 1:13-CV-49-MW/GRJ, 2013 WL 3797287, *1-2 (N.D. Fla. July 19, 2013) (Kiobel precludes jurisdiction over ATS claim that President Obama conspired to persecute individuals abroad); Mwangi v. Bush, CIV.A. 5:12-373-KKC, 2013 WL 3155018, *2, 4 (E.D. Ky. June 18, 2013) (dismissing foreign plaintiffs ATS claims against former President George Bush and his family, who allegedly orchestrated conduct from the U.S., visited Kenya from the U.S., and conspired with Kenyans to abuse plaintiff in Kenya).
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this obvious impact of the Kiobel holding on their [ATS] claims, 727 F.3d at 189, by emphasizing that the defendants were U.S. citizens (Ford, Chrysler and IBM), and by claiming that they took affirmative steps in this country to aid and abet the South African apartheid. Id. at 192. Plaintiffs factual allegations included that IBM manufactured computer hardware and software in, and provided technical support from the U.S., and that Ford and Chrysler manufactured vehicles, parts and equipment in the U.S., all with the knowledge and purpose of enabling the South African governments crimes against humanity in South Africa. Id. at 182-83. After the trial court refused to dismiss the case, the Second Circuit accepted mandamus review and directed the court to enter judgment on the pleadings for the defendants, because the Supreme Courts Kiobel decision plainly forecloses the plaintiffs claims as a matter of law. Id. at 194 (emphasis added). Noting that [t]he Supreme Court expressly held that claims under the ATS cannot be brought for violations of the law of nations occurring within the territory of a sovereign other than the United States, the Second Circuit cautioned that [l]ower courts are bound by that rule and they are without authority to reinterpret the Court's binding precedent in light of irrelevant factual distinctions, such as the citizenship of the defendants. Id. at 189-90. The Second Circuit made clear that: In all cases, therefore the ATS does not permit claims based on illegal conduct that occurred entirely in the territory of another sovereign. In other words, a common-law cause of action brought under the ATS cannot have extraterritorial reach simply because some judges, in some cases, conclude that it should.
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Id. at 192 (emphasis added) (italics in original; bold emphasis added).5 The same outcome should obtain here, where the alleged U.S. conduct of Lively is more sparse and tenuous, not to mention constitutionally protected. A writ of mandamus should issue to correct the jurisdictional error of the lower court. B. The District Court is Clearly without Jurisdiction because there is no Clearly Defined and Universally Accepted Prohibition on Persecution Based upon Sexual Orientation.
Under the ATS, federal courts only have jurisdiction to adjudicate the very narrow subset of international law norms that are specific, universal and obligatory. Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004). Lower courts are not free to recognize new international torts; instead, they must engage in vigilant doorkeeping to maintain a narrow class of actionable torts. Id. at 729. [T]he requirement of universality goes not only to recognition of the norm in the abstract sense, but to agreement upon its content as well. Xuncax v. Gramajo, 886 F. Supp. 162, 187 (D. Mass. 1995) (emphasis added) (dismissing ATS claims for cruel, inhuman, or degrading treatment because, although proscribed generally by major international agreements on human rights, there was no universal agreement as to what specific acts constitute this tort). [T]he offense must be based on present day, very widely accepted interpretations of After declaring the trial courts error, the Second Circuit did not actually issue a writ, but commanded the court to grant judgment on the pleadings in light of Kiobel. Balintulo, 727 F.3d at 194. This Court has routinely employed this procedure, see Ramirez v. Rivera-Dueno, 861 F.2d 328, 335 (1st Cir. 1988); In re Perry, 859 F.2d at 1050, and there is a frequent practice of withholding actual issuance of a writ after declaring the trial courts error. 16 Fed. Prac. & Proc. Juris. 3932.2 (2d ed.).
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international law: the specific things the defendant is alleged to have done must violate what the law already clearly is. Mamani v. Berzain, 654 F.3d 1148, 1152 (11th Cir. 2011) (emphasis added) (dismissing ATS claim for crimes against humanity because, although some crimes against humanity are recognized, there is no universal consensus that the specific conduct alleged constitutes such crimes). 6 The district court recognized that no nation on earth criminalizes persecution specifically based upon sexual orientation or transgender grounds; that no court has ever imposed liability for this type of persecution as a crime against humanity; and that the international treaties and instruments that provide jurisdiction over crimes against humanity list particular protected groups without specifying LGBTI people. (Ex. 4 at 25) (emphasis added). Had the court observed its vigilant doorkeeping duty, it would have ended the inquiry at that point. Instead, the court flung the jurisdictional doors wide open, and divined an international prohibition on persecution on sexual orientation grounds from one international agreement the Rome Statute which defines persecution as the intentional and severe deprivation of fundamental rights contrary to international
See also, Forti v. Suarez-Mason, 694 F. Supp. 707, 712 (N.D. Cal. 1988) (To be actionable under the [ATS] the proposed tort must be characterized by universal consensus in the international community as to its binding status and its content. In short, it must be a universal, definable, and obligatory international norm.) (italics in original) (dismissing ATS claim because of definitional gloss and lack of universal agreement over the elements of the asserted norm); In re Terrorist Attacks on September 11, 2001, 714 F.3d 118, 125 (2d Cir. 2013) (affirming dismissal of ATS claim because there continues to be strenuous disagreement among States about what actions do or do not constitute terrorism .) (emphasis added).
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law by reason of the identity of the group or collectivity. (Ex. 4 at 24). In an unprecedented move, the court extended the Rome Statute to cover persecution based upon sexual orientation grounds, and did so not because the treaty expressly includes sexual orientation in its short list of protected classes, but because it has a savings clause which the court felt deserves a generous interpretation of what groups enjoy protection under international norms. (Id. at 24-28). In becoming the first tribunal worldwide to expand the Rome Statute in this manner, despite its limited ATS jurisdiction, the trial court usurped its authority in three major respects. First, the court ignored the Supreme Courts holding that an international treaty which does not itself create obligations enforceable in the federal courts cannot be used to derive the existence or content of international norms. Sosa, 542 U.S. at 734-35. The Rome Statute is precisely this sort of instrument, because it was expressly rejected by the United States. Doe v. Exxon Mobil Corp., 654 F.3d 11, 36 n.22, 39 (D.C. Cir. 2011) (The Rome Statute does not constitute customary international law) vacated on other grounds, 527 F. Appx 7 (D.C. Cir. 2013). 7 Second, given the patent contradictio in terminis, no other court has ever found that a clearly defined and universally accepted international norm See also, Vietnam Assn for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 118 (2d Cir. 2008) (rejecting the Geneva Protocol as source of customary international law during the Vietnam conflict because of the nature and scope of the reservations to ratification); Flores v. S. Peru Copper Corp., 414 F.3d 233, 258 (2d Cir. 2003) (rejecting the American Convention on Human Rights as a source of customary international law because the U.S. has not ratified it, which indicat[es] that this document has not even been universally embraced by all of the prominent States within the region in which it purports to apply).
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percolates silently within the savings clause of even a binding international treaty, let alone one that has been expressly rejected. If an international treaty is silent, then by definition it cannot supply a clearly defined norm. Mamani, 654 F.3d at 1152 (only norms defined with specificity trigger ATS jurisdiction -- [h]igh levels of generalities will not do). Since [t]he ATS is no license for judicial innovation, id., such groundbreaking extension of the Rome Statute should be left for another tribunal in another land, not a federal court in a nation that has rejected the treaty outright and that strictly polices the limited jurisdiction of its courts. Third, and most importantly, in concluding that the newly minted prohibition on sexual orientation persecution is universally recognized, the district court ignored SMUGs own statistics which demonstrate that the majority of nations routinely engage in what the Rome Statute calls intentional and severe deprivation of fundamental rights with respect to sexual orientation and conduct.8 Livelys statistics mirrored those provided by SMUG (Ex. 2, pp. 31-36), so there was no dispute as to the state of international affairs. SMUGs own statistics demonstrate that the protections it advances for sexual orientation and conduct are not implemented in half or more of the worlds nations. (Opp. to Mot. to Dismiss, dkt. 38, pp. 42-43) (excerpt attached as Exhibit 10) (only 6 countries have explicit constitutional prohibitions against discrimination based on sexual orientation; only 19 countries prohibit[] discrimination in employment based on gender identity; only 20 countries grant asylum due to a claim of persecution based on sexual orientation; only 24 countries prohibit incitement to hatred based on sexual orientation; only 52 countries prohibit discrimination based on sexual orientation in employment; and only 113 countries have moved to repeal laws criminalizing homosexual conduct, though not all have succeeded). Although the number fluctuates, this Court may judicially notice that there are upwards of 200 countries in the world.
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The court reasoned that just because a group continues to be vulnerable to widespread, systematic persecution does not mean that the prohibition is less universal for ATS purposes. (Ex. 4 at 29). This is directly contrary to the Supreme Courts teaching in Sosa, where the Court held that it is one thing to label a handful of rogue nations as international law breakers and find that a norm is universally accepted notwithstanding their refusal to abide by it, but another thing entirely to conclude that a majority the worlds countries are rogue states, while the minority are following a universally accepted norm: It is not that violations of a rule logically foreclose the existence of that rule as international law. Nevertheless, that a rule as stated is as far from full realization as the one Alvarez urges is evidence against its status as binding law; and an even clearer point against the creation by judges of a private cause of action to enforce the aspiration behind the rule. Sosa, 542 U.S. at 738 n.29 (emphasis added) (internal citation omitted). In Sosa, the Court concluded that an asserted norm against arbitrary arrest and detention was not sufficiently universal to confer ATS jurisdiction even though it had been enshrined in at least 119 national constitutions. Id. at 736, n.27. 9 If acceptance of a rule by 119 out of 200+ nations falls short of full realization as required for ATS jurisdiction, surely the same fatal shortcoming befalls the norms advanced by SMUG which, according to its own statistics, are followed by only six, The Supreme Court considered a survey of national constitutions, Sosa, 542 U.S. at 736 n.27, and that survey, in turn, indicated that [t]he right to be free from arbitrary arrest and detention is protected in at least 119 national constitutions. Bassiouni, Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions, 3 Duke J. Comp. & Int'l L. 235, 260-61 (1993).
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twenty or fifty-two nations at most. Moved by [t]he history and current existence of discrimination against LGBTI people, the district court improperly shifted its focus from what international law clearly is, to what the court thinks it should be. (Ex. 4 at 29). In doing so, the court again departed from the Supreme Courts admonishment that judges do not have any residual common law discretion under the ATS to rectify perceived injustices in the present, imperfect world by exercising jurisdiction over an aspiration that exceeds any binding customary rule having the specificity we require. Sosa, 542 U.S. at 738 (emphasis added); see also Mamani, 654 F.3d at 1152 (We do not look at these ATS cases from a moral perspective, but from a legal one. We do not decide what constitutes desirable government practices.). Finally, even if there were a clearly defined and universally accepted international norm against persecution based upon sexual orientation or transgender status, that norm would not cover the specific things the defendant is alleged to have done. Mamani, 654 F.3d at 1152 (emphasis added). SMUG alleges that Lively did no more than (1) vilify sexual practices through false and offensive public speeches, books and writings; and (2) pursue legislation and train and encourage others to pursue legislation restricting homosexual rights, which legislation was never enacted. Whatever persecution means, it cannot mean that pure speech and public advocacy of laws are now criminal endeavors, least of all when the advocacy has led to no new laws.
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In sum, for ATS cases[,] judicial creativity is not justified, and, instead, judicial restraint is demanded. Mamani, 654 F.3d at 1156-57 (citing Sosa, 124 S.Ct. at 2762-63). Mandamus intervention is necessary to restrain the authority of the lower court and restore it to its constitutional limits. C. Livelys Alleged Conduct is Core Political Speech Protected by the First Amendment.
The district court accepted Livelys premise that the First Amendment trumps international law, and covered him in Uganda, but refused dismissal because the First Amendment does not protect criminal activity. (Ex. 4 at 58-62).10 The proposition that Livelys alleged speech and conduct is somehow criminal activity is both unprecedented and breathtaking. Critically, SMUG does not allege that Lively contributed any conduct to the eight alleged acts of persecution. (Ex. 1, 165-228). After providing a 41-page and 164-paragraph description of Livelys speech supposedly only for context, since SMUG claims that its suit is not premised on [Livelys] anti-gay speech or writings (Ex. 1, 11-12) the Amended Complaint contains a discrete section that describes in great detail the eight acts of persecution on which the suit is premised. (Ex. 1, 165-
The supremacy of the Free Speech Clause of the First Amendment over international law, its portability to Uganda, and its protection of Livelys speech and alleged conduct are fully discussed in Livelys Motion to Dismiss. (Ex. 2 at 1726). The district courts struggle with whether or not a different subsection of the First Amendment (the Petition Clause) protects the petitioning of foreign governments (Ex. 4 at 62-63) is not relevant, either because the speech at issue is separately protected by the Free Speech Clause, or because Mr. Livelys alleged petitioning indisputably has not led to the enactment of any laws.
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228). One must search far and wide within this section to even find Livelys name, let alone an allegation that Lively did or assisted any of these acts. (Id.) SMUG, therefore, does not claim that Lively advocated or incited anyone to imminent violence. (Id.) See N. A. A. C. P. v. Claiborne Hardware Co., 458 U.S. 886, 927-28 (1982) (Only advocacy [which] is directed to inciting or producing imminent lawless action and is likely to incite or produce such action is actionable) (emphasis added) (citing Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)). SMUG also does not claim that Lively provided locations for Ugandan police to raid (Ex. 1, 165-185); nor that he provided names of people for Ugandan police to arrest (id. at 186-193, 209-214); nor that he provided names of homosexuals for Ugandan tabloids to out (id. at 215-225); nor that he encouraged anyone to do any of these specific things. (Id. at 165-228). The only connection that SMUG does allege between Lively and these eight persecutory acts, is his speech criticizing homosexual promotion and conduct, and his advocacy, not of violence, but simply of laws that restrict the public promotion and display of homosexuality. (Id. at 43-93). The sinister and nefarious conduct, strategy, scheming and plotting that SMUG attributes to Lively is nothing more than Livelys alleged teaching of Ugandans how to pursue laws that restrict homosexual rights, which laws were never enacted. (Id.) SMUGs entire theory of liability against Lively is encapsulated in paragraph 93 of the Amended Complaint, where SMUG alleges that Livelys peaceful and non-violent speech and
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advocacy was so denigrating to homosexuals, that it invited, induced and encouraged people whom Lively never even met to commit violent acts which Lively never advocated, and then not imminently, but rather many months and even years removed from Livelys visits to Uganda. (Id. at 93). 11 The district courts failure to instantly recognize that Livelys alleged conduct is not criminal activity but protected speech was indisputably erroneous. [S]peech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection. Snyder v. Phelps, 131 S. Ct. 1207, 1215 (2011). [C]itizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment. Boos v. Barry, 485 U.S. 312, 322 (1988). [T]hreats of vilification or social ostracism, are constitutionally protected and beyond the reach of a damages award. Claiborne Hardware Co., 458 U.S. at 926. Livelys alleged association with four Ugandan citizens for the purpose of lawfully opposing the expansion of homosexual rights cannot be criminal activity, even if those alleged co-conspirators had subsequently committed crimes.12 Claiborne Hardware Co., 458 U.S. at 920 (Civil liability may not be imposed merely because an individual belonged to a group, some members of which
11
Indeed, Lively has condemned these violent acts, and has praised the Ugandan courts for punishing them. (Ex. 2, p. 12; Ex. 3 9, 37-38, 86, 140, 161).
Critically, however, the four individuals with whom Lively allegedly associated in Uganda are not the same as those who allegedly committed the eight acts of persecution. (Compare Ex. 1, 94-164 with 165-228).
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committed acts of violence). This Courts seminal decision in United States v. Spock, 416 F.2d 165 (1st Cir. 1969), mandates the application of strictissimi juris to SMUGs allegations because they involve speech within the shadow of the First Amendment. Id. at 172. Under this doctrine, Lively could not be liable for the eight alleged acts of persecution unless he personally agreed to employ the illegal means contemplated. Id. at 176 (emphasis added). If Dr. Spock could not be liable for the crime of draft card burning committed by others, even though he explicitly advocated that crime and was physically present during its commission, id. at 17679, Lively cannot be liable for the alleged persecution here, because SMUG does not and cannot allege that Lively personally agreed to employ the alleged police raids, false arrests and tabloid outings. At bottom, the courts Order carries the astounding implication that Americans engaged in the public debate over sexual rights for example by conspiring to pass constitutional amendments denying marriage to homosexual couples, by plotting to defeat local ordinances requiring cross-gender bathroom use, or by scheming to defeat the passage of the Employer Non-Discrimination Act are guilty of the crime against humanity of persecution, because they have engaged in the intentional and severe deprivation of fundamental rights contrary to international law. To question the wisdom of such advocates, and to oppose them in the political process is one thing, but to open the door for declaring them hostis humanis generis, as the district court has done here, is quite another.
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The courts decision is so contrary to bedrock First Amendment principles that it warrants immediate correction, even though the Order itself does not prohibit speech. In re Asbestos Sch. Litig., 46 F.3d at 1289-94 (requiring immediate dismissal via mandamus because the challenged speech was protected, and the district courts decision is squarely inconsistent with Claiborne Hardware Co.). See also, section II, infra. The Petition should be granted. II. LIVELY HAS EXHAUSTED ALL ALTERNATIVES AND HAS NO OTHER ADEQUATE MEANS TO AVOID IRREPARABLE HARM. Prior to filing this Petition, Lively exhausted all other avenues for relief. When the district court denied his Motion to Dismiss, Lively sought certification of an interlocutory appeal under 28 U.S.C. 1292(b). (Ex. 5). The court summarily denied certification stating that [n]o substantial question of law exists, (Ex. 6 at dkt. 71), even though all other post-Kiobel courts had dismissed ATS claims against U.S. citizens as a matter of law, see note 4, supra, and even though the only other court to retain ATS jurisdiction (against foreign defendants on inapposite facts) sua sponte certified its decision for interlocutory appeal. See p. 9, supra. Lively even asked the district court to reconsider its denial of interlocutory certification (Ex. 7), which the court again summarily DENIED. (Ex. 6 at dkt. 75). Nevertheless, a ruling that raises substantial questions of judicial power under the ATS and threatens to affect significant American foreign policy objectives cannot be insulated from immediate review simply because a lower court refuses to certify the order for appeal. Balintulo, 727 F.3d at 188 (emphasis added).
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Short of mandamus, an end-of-case appeal is now Livelys only recourse. However, where, as here, there is something about the order, or its circumstances, [that] would make an end-of-case appeal ineffectual or leave legitimate interests unduly at risk, mandamus is warranted. In re Pearson, 990 F.2d at 656. An end-ofcase appeal is not a viable remedy here for at least three reasons. First, allowing the court to exercise jurisdiction where it is clearly absent would be a sufficiently grave affront to the Constitution to warrant immediate intervention. United States v. Horn, 29 F.3d 754, 770 (1st Cir. 1994) (the case for mandamus here [is] especially compelling because it poses an elemental question of judicial authority involving precisely the sort of Article III-type jurisdictional considerations that traditionally have triggered mandamus review). As this Court has held, [s]ubject matter jurisdiction is not a nicety of legal metaphysics but rests instead on the central principle of a free society that courts have finite bounds of authority. Christopher v. Stanley-Bostitch, Inc., 240 F.3d 95, 101 (1st Cir. 2001) (mandamus review is appropriate where order was entered when there was no federal jurisdiction). For this reason, questions of judicial authority are the classic exceptional instance justifying interlocutory review. In re U.S., 426 F.3d at 5. Second, SMUG is attempting to use the non-existent jurisdiction of a U.S. court to compel involuntary discovery from a foreign sovereign, and to establish that the Ugandan government, its members of Parliament and its high ranking officials have committed crimes against humanity in the governance of their people. This is a
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key and required element of SMUGs claim that Lively aided and abetted the Ugandan government in the persecution of sexual minorities, because there can be no secondary ATS liability without proving that the principal violated international law. Presbyterian Church of Sudan v. Talisman Energy, Inc., 453 F. Supp.2d 633, 668 (S.D.N.Y. 2006) affd, 582 F.3d 244 (2d Cir. 2009). SMUGs aiding and abetting claims against Lively cannot succeed unless SMUG proves, and the district court adjudges, that members of the Ugandan Parliament and high ranking government officials have committed crimes against humanity. 13 Such an indictment by a U.S. court against a sovereign would be perilous in any case, let alone here, where the court is clearly without jurisdiction. Mamani, 654 F.3d at 1152 (granting interlocutory appeal and requiring dismissal of ATS claims for failure to plead a specific and universal international norm, because [w]e know and worry about the foreign policy implications of civil actions in federal courts against the leaders (even the former ones) of nations); Balintulo, 727 F.3d at 187 (granting mandamus review to carefully scrutinize ATS jurisdiction, because ATS suits often create particular risks of adverse foreign policy consequences). Third, while the general burdensomeness of litigation, standing alone, does not warrant mandamus intervention, In re Pearson, 990 F.2d at 661 (emphasis added), [t]he harm here goes far beyond the mere burden and expense of protracted
13
In the proposed discovery plan, Lively attempted to shield the sovereign Ugandan government from involuntary discovery. (Ex. 8, p. 3, f). Signaling its intent to compel such involuntary, transnational discovery, SMUG opposed this protection (id.), and the court rejected it. (Ex. 9, p. 2).
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litigation. In re Perry, 859 F.2d at 1047. Unless this Court intervenes, Lively will be required to engage in 18 months of transnational discovery on multiple continents and protracted motion practice even before reaching trial. (Ex. 9). ATS cases routinely take a decade or more to resolve. (Ex. 7, p. 11 & n.3). Requiring Lively to undertake such a complex feat at so great a cost, only to vindicate clearly protected First Amendment rights, would chill the exercise of those rights by him and others and warrants mandamus intervention. In re Perry, 859 F.2d at 1047-48 (granting mandamus review to redress First Amendment claim). That the challenged Order itself does not directly prohibit speech does not negate the need for mandamus. In re Asbestos Sch. Litig., 46 F.3d at 1295 (requiring dismissal of action via mandamus because challenged conduct was protected by First Amendment). As then-Circuit Judge Alito recognized, the mere threat of such liability has an inhibiting effect on speech, and justifies mandamus intervention even where the district courts ruling did not directly prohibit speech. Id.; see also, Nat'l Nutritional Foods Ass'n v. Whelan, 492 F. Supp. 374, 378-79 (S.D.N.Y. 1980) (The threat of being put to the defense of a lawsuit may be as chilling to the exercise of First Amendment freedoms as fear of the outcome of the lawsuit itself). Few people would ever engage in the political process if the cost of doing so was having to defend through discovery and summary judgment a transnational crimes against humanity suit brought by their political adversaries. Here, this is SMUGs admitted purpose in bringing this suit to make it too costly for Lively
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and others to engage in speech and advocacy that offends SMUG. (Ex. 2 at pp. 1011 & n.10). The district court itself recognized 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, (Ex. 4 at 64-65), but erroneously concluded that such burdens could be imposed at least through discovery and summary judgment (id. at 65), which is at least 18 months and many transnational depositions away. (Ex. 9). The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373 (1976). This Court should intervene to prevent such injury. Finally, even if irreparable harm were absent, which it is not, this Court should still decide these weighty and novel issues now, via advisory mandamus. 14 III. MANDAMUS IS APPROPRIATE UNDER THE CIRCUMSTANCES. In Uganda, as in the United States, a fierce public debate is taking place about sexual rights. In some instances, Ugandan actors have abandoned civil discourse and resorted to violence or other unlawful means. SMUG has successfully appealed to Advisory mandamus is appropriate when the issue presented is novel, of great public importance, and likely to recur. United States v. Horn, 29 F.3d 754, 769-70 (1st Cir. 1994). When advisory mandamus is in play, a demonstration of irreparable harm is unnecessary. In re Sony BMG Music Entmt, 564 F.3d 1, 4 (1st Cir. 2009). The jurisdictional questions and First Amendment issues raised here are the big game suitable for advisory review. Horn, 29 F.3d at 770. This Court has never decided these questions. The effect of a defendants U.S. citizenship and domestic conduct under Kiobel has already come up at least nine times (see pp. 1213 & n.4, supra), and is likely to recur. And if mere advocacy of laws restricting sexual rights is now a crime against humanity rather than core, protected political speech, American citizens should receive fair warning forthwith that such advocacy, even when unsuccessful, could render them the enemy of mankind.
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the Ugandan judiciary to step in, punish the offenders, and impart justice. Nevertheless, SMUG now seeks to involve a United States court an ocean away in its struggle. But, however sympathetic SMUGs plight might be, that involvement comes at too high a price transgressing the clearly delineated jurisdictional boundaries of Article III of the United States Constitution, and criminalizing speech and political conduct that lies at the core of the First Amendment. Mandamus relief is appropriate under these circumstances because it is the only means left to enforce and protect these constitutional values that no court has the authority to sacrifice, even for the most sympathetic causes. CONCLUSION The Petition should be granted, the Order Denying Motion to Dismiss should be vacated, and the Amended Complaint dismissed with prejudice in its entirety. 15
A dismissal on First Amendment grounds would bar the entire Amended Complaint. However, mandamus intervention would be necessary and warranted even for a dismissal solely on ATS jurisdictional grounds, which would technically spare SMUGs two state law claims for conspiracy and negligence (Counts 4-5), because dismissal of the ATS claims (Counts 1-3) would: (1) vindicate the Article III limitations on the lower courts jurisdiction (sect. I(A)-(B), II, supra); (2) lessen the adverse foreign policy implications attendant to SMUGs aiding and abetting claims under the ATS (sec. II, supra); (3) eliminate the need for the anticipated and protracted expert discovery on what international law provides (Ex. 9, 7-9); and (4) require the district court to take a closer look at the viability of the state law claims, rather than permit them to piggyback on the non-viable ATS claims. A closer review will reveal that the state law claims are barred by the statutes of limitations (Ex. 2, pp. 64-68), and are themselves non-viable (id. at 69-73), because, for example, there is no such thing as the negligent creation through speech of a virulently hostile environment. (Id. at 70).
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Case: 13-2503
Document: 00116621208
Page: 1
Entry ID: 5785627
13-2503 NO. ________________ ________________________________________________________________
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT __________________________________________________________________ IN RE SCOTT LIVELY, Individually and as President of Abiding Truth Ministries __________________________________________________________________
EXHIBITS 1-10
TO PETITION FOR WRIT OF MANDAMUS to the United States District Court for the District of Massachusetts, Springfield Division, Honorable Michael A. Ponsor, Case No. 3:12-cv-30051-MAP _________________________________________________________________ Mathew D. Staver Anita L. Staver Horatio G. Mihet Liberty Counsel P.O. Box 540774 Orlando, FL 32854 (800) 671-1776 Telephone (407) 875-0770 Facsimile Stephen M. Crampton Liberty Counsel 100 Mountain View Road Suite 1845 Lynchburg, VA 24502 (434) 592-7000 Telephone (434) 592-7700 Facsimile
Case: 13-2503
Document: 00116621208
Page: 2
Entry ID: 5785627
TABLE OF CONTENTS
TAB 1 2 3 4 5 6 7 8 9 10 Amended Complaint
EXHIBIT
Motion to Dismiss Amended Complaint and Memorandum in Support Answer and Defenses to Amended Complaint Order Denying Motion to Dismiss Motion to Certify Interlocutory Appeal and Memorandum in Support Docket Sheet Motion to Reconsider Denial of Certification and Memo in Support Proposed Discovery Plan Scheduling Order Excerpt from Plaintiffs Opposition to Motion to Dismiss
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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS SPRINGFIELD DIVISION
Civil Action 3:12-CV-30051 (MAP) SEXUAL MINORITIES UGANDA Plaintiff, v. FIRST AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 15(a)(1)(B) FOR CRIME AGAINST HUMANITY OF PERSECUTION DEMAND FOR JURY TRIAL
SCOTT LIVELY, individually and as President of Abiding Truth Ministries Defendant. _________________________________________
INTRODUCTION 1. This case is brought by SEXUAL MINORITIES UGANDA , an umbrella
organization located in Kampala, Uganda, which represents the interests of its constituent member organizations in advocating for the rights of lesbian, gay, bisexual, transgender and intersex people (LGBTI) in Uganda. It is brought against defendant Scott LIVELY, a U.S.-based attorney, author, evangelical minister and self-described world-leading expert on the gay movement, for the decade-long campaign he has waged, in agreement and coordination with his Ugandan counterparts, to persecute persons on the basis of their gender and/or sexual orientation and gender identity. 2. The case is brought under the Alien Tort Statute (ATS), 28 U.S.C.
1350, which provides federal jurisdiction for 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. The
United States Supreme Court has affirmed the use of the ATS as a remedy for serious violations of international law norms that are widely accepted and clearly defined. Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). 3. Persecution, as a crime against humanity that is universally proscribed and
clearly defined in international law, is such a violation. Persecution is defined in international law as the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity. Rome Statute of the International Criminal Court, Art. 7(2)(G). The prohibition on persecution protects individuals on the basis of their identity and punishes those who act in concert to deprive the rights of others on the basis of that identity.1 Persecution, by definition, is a group crime; it cannot be committed by one person acting alone. 4. state law. 5. In very large part due to defendant LIVELYs contributions to the Plaintiff also asserts tort claims which are cognizable under Massachusetts
conspiracy to persecute LGBTI persons in Uganda, plaintiff SEXUAL MINORITIES UGANDA, as an entity, as well as its individual staff-members and member organizations, have suffered severe deprivations of fundamental rights. Their very existence has been criminalized and their physical safety threatened through a coordinated campaign, which LIVELY has largely initiated, instigated and directed, to strip way basic fundamental rights from people on the basis of their sexual orientation and gender identity and those who advocate on their behalf. To aid in doing so, LIVELY
Although Plaintiffs claims are directly cognizable under the ATS, the claims find strong domestic-law parallel in the Ku Klux Klan Act of 1871, 42 U.S.C. 1985(3), which punishes private conspiracies to deprive citizens of the equal protection of the law or of certain privileges and immunities, such as freedom of expression or association, if it is motivated by a group-based animus.
frequently attributes to the genocidal gay movement an irrepressible predilection to commit rape and child sexual abuse. 6. As set out in more detail below, SEXUAL MINORITIES UGANDA and
the community they represent have endured severe discrimination in virtually every meaningful aspect of their civil and political lives; their association has been criminalized; their advocacy on issues central to their health and political participation has been suppressed and punished; and they have been subjected to cruel, inhuman and degrading treatment. Plaintiff's meetings and trainings have been raided and disbanded and its staff members have been arrested, subjected to humiliating and degrading treatment. Sexual Minorities Uganda has had to devote substantial resources and time in dealing with precarious and emergent situations in response to crises of individual LGBTI persons in the community who have been threatened, assaulted, harassed, falsely arrested and/or made homeless because of their real or perceived status as lesbian, gay, bisexual, trangender or intersex. Many individual members of SMUG and its constituent organizations live in persistent fear of harassment, arbitrary arrest and physical harm, even death. 7. According to LIVELYS own admissions, his influence and work in
Uganda date back at least a decade when he visited Uganda twice in 2002 to coordinate with his Ugandan counterparts, Stephen LANGA, a prominent and extremist anti-gay community leader and pastor, and Martin SSEMPA, also an anti-gay extremist activist and minister, to implement his strategies to dehumanize, demonize, silence, and further criminalize the LGBTI community. While their efforts were largely effective between 2002 and 2009, LIVELYs work took on a whole new level of urgency after a December
2008 court victory for LGBTI advocates which affirmed that they are entitled to the basic protections of law. 8. Spurred to action to counter the prospect of basic legal protections for
LGBTI individuals, LIVELY and his co-conspirators, LANGA, SSEMPA, Minister of Ethics and Integrity James BUTURO and Member of Parliament David BAHATI, coordinated a dramatic, far-reaching response, which LIVELY and LANGA would later boast had the effect of a nuclear bomb. LIVELYS 2009 work in Uganda and his call to arms to fight against an evil and genocidal, pedophilic gay movement, which he likened to the Nazis and Rwandan murderers, ignited a cultural panic and atmosphere of terror that radically intensified the climate of hatred in which LIVELYs goals of persecution could advance. Shortly after LIVELYS pivotal 2009 work in Uganda, one Member of Parliament expressed, We must exterminate homosexuals before they exterminate society.2 9. Among the shocking, repressive measures undertaken after 2009, is the
introduction of the Anti-Homosexuality Bill (also referred to as the Kill the Gays Bill), which proposed the death penalty for a second conviction of consensual sex between adults of the same gender, and imprisonment for failure to report on others suspected of being homosexual, and for advocacy in any way on issues related to homosexuality. While LIVELY has half-heartedly tried to distance himself from the death penalty
Statement of Shadow Minister of Information and National Guidance, Mr. Christopher Kibansanga, Hansard, Proceedings of the Parliament of Uganda (Apr. 15, 2009), available at http://www.parliament.go.ug/hansard/hans_view_date.jsp?dateYYYY=2009&dateMM=04&dateDD=16 (last visited Mar. 13, 2012).
provision of the bill, he still considers it the lesser of two evils as compared to recognizing the humanity of LGBTI individuals or permitting their speech or advocacy.3 10. In 2010, a tabloid newspaper parroting characterizations of gays and
lesbians repeatedly made to Ugandan officials by LIVELY published an article outing SEXUAL MINORITIES UGANDA Advocacy Officer David Kato (and others), under the headline, HANG THEM.4 Some of the advocates featured in that article received heightened death threats, and one of them, Mr. Kato, is now dead. In February and June of 2012, trainings on human rights for LGBTI organizations were raided by Ugandan government officials who declared the gatherings illegal. In February 2012, the Minister of Ethics and Integrity called those gathered there terrorists. One of the organizers had to flee in order to avoid arrest and detention. 11. This case seeks to challenge LIVELYS conduct through his involvement
in a conspiracy to severely deprive people of their fundamental rights on the basis of their identity. It is not, therefore, premised on his anti-gay speech or writings. LIVELYS prolific, willfully misinformed and inflammatory rhetoric about the evil gay movement with his frequent depictions of gay people as genocidal, psychopathic, exceptionally brutal and savage and as child predators in Uganda and elsewhere, are relevant pieces of evidence insofar as they demonstrate his overall discriminatory purpose and the shared intent of the conspiracy to persecute in which he is intimately involved. They do not form an independent basis for a cause of action.
Vanguard: Missionaries of Hate, (Current TV broadcast Jun. 3, 2010) , available at http://current.com/shows/vanguard/92468669_missionaries-of-hate.htm (last visited Mar. 12, 2012). 4 Hang Them: They Are After Our Children, Rolling Stone, Oct. 2-9, 2010, at 6. This publication is unrelated to the U.S. publication.
12.
The context of LIVELYs actions is important. His insidious rhetoric and
attempts at overt discrimination against, and ultimately eradication of, a minority community might not take hold in many places not also struggling in the way Uganda has been in the battle against the spread of HIV/AIDS, poverty and armed conflict. Yet, it is specifically because he knew Uganda presented fertile ground and through his willing accomplices with access to political power a realistic opportunity to meaningfully provoke and bring about the persecution of the LGBTI community, that he focused much of his decade-long efforts there. 13. SEXUAL MINORITIES UGANDA seeks a judgment declaring that
LIVELYs actions are illegal, in violation of international law and Plaintiffs fundamental human rights. SEXUAL MINORITIES UGANDA also seeks compensatory and punitive damages for violations of their fundamental rights, and injunctive relief enjoining the Defendant from undertaking further actions to strip away and/or deprive Plaintiff and LGBTI community in Uganda of their fundamental rights, including their rights to freedom of expression, association and assembly, to be free from torture and other cruel, inhuman and degrading treatment, and arbitrary arrest and detention, as part of his effort to enshrine and legalize discrimination on the basis of sexual orientation and gender identity. 14. By seeking to enjoin, punish, and deter LIVELYs actions, SEXUAL
MINORITIES UGANDA acts now to prevent the further escalation of persecution in Uganda before it reaches an even more lethal stage.
JURISDICTION AND VENUE 15. This Court has jurisdiction over Plaintiffs claims under 28 U.S.C. 1331
(federal question jurisdiction) and 28 U.S.C. 1350 (the Alien Tort Statute) which provides federal jurisdiction for 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 Court also has jurisdiction over Plaintiff's claims under 28 U.S.C. 1332 (diversity jurisdiction) because there is complete diversity among the parties who are citizens of different states and the amount in controversy exceeds $75,000, exclusive of costs and interests. Plaintiff also invokes supplemental jurisdiction under 28 U.S.C. 1367 over claims based upon the laws of the state of Massachusetts. 16. Venue is proper in the Springfield Division of the District of
Massachusetts pursuant to 28 U.S.C. 1391(b)(1) and (2), and this Court has personal jurisdiction over Defendant who resides and does business in the district. JURY DEMAND 17. Plaintiff demands a trial by jury on each and every one of its claims.
THE PARTIES Plaintiff 18. Plaintiff, SEXUAL MINORITIES UGANDA is an umbrella organization
that was founded in 2004 by a coalition of Ugandan organizations advocating on behalf of lesbian, gay, bisexual, transgender, and intersex (LGBTI) communities, to unify and support sexual minority groups in Uganda. 19. citizenship. 7 Plaintiff and its member organizations and staff members have Ugandan
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20.
Plaintiffs objectives are to advocate and lobby for equality for all, to
bolster LGBTI visibility through media and literature, and to empower activists through leadership and social entrepreneurship trainings. The organization also fights against HIV/AIDS in LGBTI communities and speaks out against discrimination and violence based on sexual orientation and/or gender identity. 21. SEXUAL MINORITIES UGANDA and its individual staff members have
suffered persecution, and associated harms as a result of LIVELYs actions, as have individual members of its constituent organizations.
Defendant 22. Scott LIVELY is a writer, attorney, evangelical minister and extremist
anti-gay activist who resides in Springfield, Massachusetts and is a citizen of the United States. He is a founder and President of Abiding Truth Ministries (ATM), which operates DefendtheFamily.com and the Pro-Family Resource Center entities that publish and disseminate LIVELYS writings and speeches on the internet. LIVELY also lists himself as President of Defend the Family International, which is in turn referred to as a subsidiary of ATM. Defend the Family also has an affiliate in Latvia co-founded by LIVELY. 23. LIVELY proclaims himself one of the world's leading experts on the gay
movement, which he describes as an evil, highly organized army of social engineers with a single purpose and the most dangerous social and political movement of our
time.5 He has written a number of books in support of his goal to deny the humanity of gays and lesbians and to strip them of their fundamental rights. While describing himself as an international human rights consultant, his efforts are geared to advising and working with political leaders in different countries to deprive LGBTI communities of fundamental human rights and the title appears to be more of a euphemism for what is more aptly described as a persecution consultant. 24. In The Pink Swastika: Homosexuality in the Nazi Party, he and his co-
author argue that the rise of Nazism with its resultant horrors was engineered and driven by a violent and fascistic gay movement in Germany. In The Poisoned Stream, he claims to have discovered, through various leads, a dark and powerful homosexual presence in other historical periods: the Spanish Inquisition, the French 'Reign of Terror,' the era of South African apartheid, and the two centuries of American slavery.6 He has also written and published Redeeming the Rainbow, which he describes as a comprehensive textbook that explains, among other things, the urgent, escalating and imminent danger this movement represents to all aspects of Christian civilization throughout the world and identifies comprehensive strategies for how to combat it.7 Elsewhere, he has blithely attributed the genocide in Rwanda to monster homosexuals.
Scott Lively, Defend the Family: Activist Handbook at p. 5 (2007), available at http://www.defendthefamily.com/_docs/resources/1096737.pdf (last visited Mar. 12, 2012) [hereinafter Lively Activist Handbook]. 6 Scott Lively, The Poisoned Stream: Gay Influence in Human History, Volume 1: Germany 1890-1945, at i (Founders Publishing 1997). 7 Scott Lively, Redeeming the Rainbow: A Christian Response to the Gay Agenda (Veritas Aeterna Press 2009).
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FACTUAL ALLEGATIONS An Overview of Persecution in Uganda 25. Over the past decade, there has been a coordinated and sustained
campaign to target and demonize the LGBTI community in Uganda that has in many cases successfully removed and isolated LGBTI people from basic human rights protections, counter to the foundational principle of the Universal Declaration of Human Rights that the inherent dignity and equal and inalienable rights belong to all as members of the human family. Defendant LIVELY and his Ugandan co-conspirators have been the principle strategists and actors behind this decade-long persecutory campaign. 26. In 2002, coinciding with LIVELYs first visits to Uganda to participate in
the first national anti-gay conference, substantial media attention began to report on and further sensationalize LIVELYs characterization of pornography as a tool of gay social engineering designed to advance its goal of sexual anarchy.8 27. Thereafter, LIVELYS cohorts STEPHEN LANGA and MARTIN
SSEMPA, continue to develop their anti-gay strategies and tactics. 28. In 2003, SSEMPA became involved in helping to develop the countrys
HIV/AIDS policies and approaches which intentionally exclude LGBTI persons. He is joined in his efforts over the next few years by another co-conspirator and Minister of Information James BUTURO . These efforts denied individuals critical public health education and awareness around LGBTI-specific HIV/AIDS transmission and prevention, and access to critical health services, resulting in heightened risk and incidence of exposure, illness and death.
8
Scott Lively, The Pink Swastika: Homosexuality in the Nazi Party 307 (Veritas Aeterna Press 1995).
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29.
On July 6, 2005, the state-owned newspaper, New Vision, ran an article
urging that [t]he police should visit the holes [sic] mentioned in the press, spy on the perverts, arrest and prosecute them. Relevant government departments must outlaw or restrict websites, magazines, newspapers and television channels promoting immorality including homosexuality, lesbianism, pornography, etc.9 30. Two weeks later, on July 20, 2005, the police raided the home of Victor
Mukasa, a transgender LGBTI rights advocate and a founder of SEXUAL MINORITIES UGANDA. The authorities unlawfully forced their way into Mukasa's home, arrested his guest, Yvonne Oyo, and seized a number of documents and hard-copy and electronic files. Oyo was then taken to the police station where she was forced to strip naked in front of the male authorities to prove her sex. Police then sexually assaulted her, by touching and fondling her breasts. 31. In 2006, Ugandan anti-gay leaders defeated an initiative proposed to
include basic anti-discrimination protections for sexual orientation and gender identity in a bill under consideration intended to provide protections for minorities. LIVELYS coconspirator LANGA took credit for defeating this effort. 32. In 2007, LIVELYS associate, Martin SSEMPA, a minister and special
representative of the government on HIV/AIDS policy, began to publicize the names, photos and address information of LGBTI advocates in a climate in which they would be considered targets a practice that is picked up by different media outlets.
Human Rights Watch, Uganda: State Homophobia Threatens Health and Human Rights, Government Persecution Contributing to HIV Pandemic, Aug. 23, 2007, available at http://www.hrw.org/news/2007/08/21/uganda-state-homophobia-threatens-health-and-human-rights (last visited Mar. 12, 2012).
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Also in 2007, Minister of Ethics and Integrity James BUTURO, another LIVELY associate, called for government to maintain catalogues of people we [the government] think are involved in perpetuating the vice of homosexuality and later acknowledged on a radio program We know them; we have details of who they are.10 33. In June 2008, three LGBTI activists are arrested for peacefully protesting
the exclusion of LGBTI people from the governments HIV/AIDS policies and programs. While in detention they were subject to cruel, inhuman and degrading treatment. 34. On December 22, 2008, the High Court of Uganda issued a high-profile
ruling arising out of the unlawful arrest and abuse of Victor Mukasa and Yvonne Oyo. In Victor Mukasa and Yvonne Oyo v. Attorney General, the Court held that gays and lesbians like anyone else could challenge the unlawful conduct of the authorities i.e., that they simply enjoyed the basic protections of law. The Court awarded damages to Oyo for the violation of her right to protection from torture, cruel, inhuman and degrading treatment under Art. 24 of the Ugandan Constitution. The Court also awarded damages to Mukasa for the violation of his right to privacy of person, home and property guaranteed by Art. 27 of the Constitution. 35. Rather than usher in protections to the LGBTI community from wanton
denials of their fundamental rights, the decision had the opposite effect. It spurred LIVELYs closest associate and ministry partner, Stephen LANGA, to sound an alarm and dramatically escalate the campaign of persecution with the critical assistance of defendant LIVELY.
See Sunday Vision, Tough Anti-Gay Law Due, Aug. 26, 2007, and The Guardian, Ugandan Gays Demand Freedom: The Quest for Gay Rights Is a Challenge to Ugandas Increasingly Authoritarian Church and State, Sept. 17 2007.
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36.
Less than three months after the High Court's ruling, LANGA hosted the
March 2009, anti-gay conference entitled Seminar on Exposing the Homosexual Agenda (the Conference or Anti-Gay Conference). As described in more detail below, this Conference prominently featured LIVELY, where based on his selfproclaimed world-leading expertise on the gay movement, he consistently attributed to gays and lesbians genocidal tendencies, a predilection for child sexual abuse and a campaign to recruit Ugandan children. LANGA also coordinated meetings with parliamentarians and members of government as well as seminars at schools and churches, and high-profile media appearances all of which LIVELY headlined and used as a platform to promote strategies aimed at further depriving the LGBTI community of their basic human rights and remedies for violations thereof. 37. On April 29, 2009, little more than one month after the Anti-Gay
Conference at which LIVELY equated homosexuality with sexual violence against children, the Anti-Homosexuality Bill was introduced in the Ugandan Parliament. The bill proposes the death penalty for crimes of aggravated homosexuality, including for repeat offenders of homosexuality. Under the bill, adults who engaged in consensual sex with someone of the same gender could be executed. Consistent with LIVELYs strategy espoused in the Anti-Gay Conference and elsewhere, the bill also proposed criminalizing LGBTI advocacy, as the promotion of homosexuality. 38. The April 2009 Anti-Homosexuality Bill was revised and expanded, and
on October 14, 2009, Member of Parliament David BAHATI introduced the version of the bill that has been in play since then, which retains the punishment of death but expands the criminalization of association with or advocacy for LGBTI individuals.
13
LIVELYS work was so effective that advocates of the bill routinely invoked concerns about protecting Ugandan children from rape and sexual violence. 39. Subsequent to the Anti-Gay Conference and the introduction of the Bill,
sensationalistic media outings became more frequent along with incendiary claims that LGBTI people posed a danger and threat to children, with one Ugandan tabloid calling to Hang Them, resulting in repeated death threats against several of those named in the tabloid. 40. Even without the Anti-Homosexuality Bill becoming law, the situation
continued to escalate. In 2012, for example, at least two gatherings of LGBTI advocates were raided and disbanded. 41. Both raids were ordered by Ugandas current Minister of Ethics and
Integrity Simon Lokodo who has also repeatedly threatened advocates with arrest for promotion of homosexuality. On the occasion of a raid on February 14, 2012, Lokodo referred to the advocates as terrorists. Subsequent to a June 2012 raid, Lokodo stated he ordered the raid and arrests of advocates so that everybody else will know that at least in Uganda we have no room here for homosexuals and lesbians. 42. Lokodo also announced that he had finalized arrangements to de-register
38 non-governmental organizations, including human rights and humanitarian organizations, on the basis that they also support LGBTI rights. The Conspiracy/Joint Criminal Enterprise to Commit Persecution A Group of Persons Acting with a Common Purpose 43. LIVELY has worked extensively with key anti-gay political and religious
leaders in Uganda with the overall purpose and objective of depriving LGBTI persons of
14
their fundamental rights, contributing intentionally to the commission of the crime of persecution by a group of persons acting with that common purpose. 44. Defendant LIVELY entered into an unlawful agreement with others to
intentionally and severely deprive persons of fundamental rights on the basis of their sexual orientation and gender identity. Among the key people with whom LIVELY has worked in these efforts are Stephen LANGA, Martin SSEMPA, James BUTURO and David BAHITI, all of whom have committed overt acts in furtherance of the conspiracy which have resulted in the deprivation of Plaintiffs fundamental rights. 45. With LIVELY, these persons, described more fully below, have formed
the core of the conspiracy and/or joint criminal enterprise in which they plotted, planned and pursued the persecution of LGBTI persons in Uganda, though they have involved and engaged with others who have also helped carry that mantle forward. Scott Lively 46. LIVELY has worked and schemed with others in Uganda for at least the
past ten years, during which time he has aligned and plotted with the persons who would eventually surface as key players and close associates in the anti-gay efforts and persecution that continue to deprive LGBTI individuals of their fundamental rights and put them in persistent danger of physical harm in particular Stephen LANGA and Martin SSEMPA. Livelys Foundational Contributions to the Persecution Campaign 47. In 2002, LIVELY traveled to Uganda twice in March and in June at
the behest of co-conspirator Stephen LANGA. During both visits, he espoused and promoted his theories about the purported dangerousness of the gay movement and its
15
strategic use of pornography as a way to soften societys resistance to the sexual anarchy he said the movement sought to impose. He also promoted strategies, including censorship of LGBTI activists, to combat it. 48. During his March 2002 visit, he spoke at length at a conference organized
by LANGA about pornography and homosexuality because he views pornography as a distinctive tool of gay social engineering and as a gateway into the gay lifestyle.11 49. In furtherance of their plan, LIVELY returned to Uganda in June 2002, to
participate in additional speaking events and media appearances for organized by LANGA on the anti-gay/anti-porn topic. 50. Also, during the June 2002 trip, LIVELY and LANGA held an all-day
pastors conference which was a closed-door meeting with no media or guests who had not been specifically invited. LIVELY did boast, however, that the pastors in attendance were very grateful for the insights I was able to give them about the way in which America was brought low by homosexual activism. . . .12 51. LIVELY also addressed students at Nkumbe University, led a service at
the Ugandan Christian University, and conducted a seminar for about 550 students and staff of local high schools where he again attributed dangerous effects of a porn culture exclusively to the gay movement. 52. During LIVELYs June visit, LIVELY also met with the Kampala City
Council and notes that they had a very frank and profitable discussion during which he
Redeeming the Rainbow, supra note 7, at 60. Scott Lively, Witness to Revival in Africa: A Report of the Ministry of Scott and Anne Lively in Uganda, Kenya and Egypt, June 12-25, 2002, pp. 2-9. Available at http://www.defendthefamily.com/_docs/resources/3038513.pdf.
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offered a number of practical suggestions for dealing with porn, including use of Ugandas power of censorship.13 53. All of these activities were planned and arranged by co-conspirator
LANGA, in furtherance of their strategy to build an infrastructure or climate in Uganda in which they could promote and bring about the persecution of the LGBTI community. 54. By the time of his 2002 visits to Uganda, LIVELY had already written his
book, The Pink Swastika: Homosexuality in the Nazi Party, in which he argues that the Nazi movement and its consequent horrors was essentially a gay movement. He notes having spoken to others about the book and making it available in Uganda. 55. LIVELY described his visits as very successful and as having made a deep
impact among key actors in Uganda, in furtherance of his campaign. Subsequent to the June 2002 trips, LIVELY maintained his relationship to LANGA, whom LIVELY refers to as his ministry partner, and with co-conspirator Martin SSEMPA and continued to assist, promote, encourage and consult with them about ways to further their agenda to deny fundamental rights to the LGBTI-identified community.14 56. Subsequent to the filing of the original complaint in this matter (ECF Doc.
1), defendant LIVELY has since further admitted that his activities during the 2002 visits made him instrumental in helping LANGA and SSEMPA launch Uganda's anti-gay movement and strategies.15
Id. Scott Lively, Report from Uganda: Comments about March 3-9 Pro-Family Mission to Uganda, Mar.17, 2009, available at http://www.defendthefamily.com/pfrc/archives.php?id=2345952 (last visited Mar. 13, 2012) [hereinafter Lively Report from Uganda]. 15 Scott Lively Interview, Roadkill Radio, Apr. 17, 2012. [hereinafter Roadkill Radio]
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Livelys Strategic Vision for the Persecution of LGBTI Persons 57. After 2002, LIVELY deepened and expanded his anti-gay efforts
internationally and continued to develop and refine strategies for promoting discrimination against LGBTI communities and stripping away their rights. 58. In 2007, LIVELY published Defend the Family: Activist Handbook
("Activist Handbook"). It presents a comprehensive plan for building a multi-pronged attack to repress the gay movement, by employing governmental, media and social spheres. According to LIVELY, the Activist Handbook was written for activists in Latvia where LIVELY had co-founded Watchmen on the Walls an organization LIVELY describes as a global coalition that coordinates opposition to the international homosexual movement, through strategies designed to remove basic rights from gay, lesbian, bisexual, transgender, and intersex people strategies which LIVELY believes could be applied anywhere. 59. In Activist Handbook, LIVELY describes the gay movement as a
highly organized army of social engineers with a single purpose and as the most dangerous social and political movement of our time.16 It is with this characterization that he justifies, broadly promotes, and intends to provoke or bring about the denial of fundamental rights to LGBTI individuals. 60. In 2009, LIVELY expanded upon the Activist Handbook when he
published Redeeming the Rainbow. Foremost among his strategies to overcome the gay movement is broad-based and systematic discrimination against people on the basis of sexual orientation and gender identity.17
16 17
Lively Activist Handbook, supra note 5. Redeeming the Rainbow, supra note 7, at 6.
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61.
LIVELY regularly characterizes efforts of the LGBTI community to
advocate equal rights as a nefarious, conspiratorial movement. For example, he characterized efforts in Moldova to guarantee equal rights for LGBT people as, the first move of a secret plan by the homosexual powers of the EU to push an anti-discrimination law based on sexual orientation through the Moldovan government.18 Heightening the hysteria around guaranteeing fundamental rights to gays and lesbians, LIVELY explained to audiences in Moldova: I guarantee you, if this bill passes, all the evil that struck the European Union, the collapse, will come to the Republic of Moldova.19 62. In Moldova, LIVELY also elaborated on why he believes it is important to
deny gays and lesbians equal protection of the laws: What I know now, and have taught the Moldovans, is that the anti-discrimination law is the seed that contains the entire tree of the homosexual agenda, with all of its poisonous fruit. It is the cornerstone of their legal and political strategy, putting the power of the governement [sic] behind the legal premise that the practice of homosexuality deserves public approval and that opposition to homosexuality, including that which is rooted in the biblical world view, must be discouraged.20 63. In his report of his activities in Moldova, defendant LIVELY also
acknowledged the great lengths to which he went and the crucial role he played in defeat the non-discrimination legislation pending at time.21 More recently, and subsequent to the filing of the original complaint in this matter, LIVELY has again admitted that his
Scott Lively, Moldovas Homosexual War Against the Family: Report from Moldova, March 3, 2011. Originally published at http://noapologies.ca/daily-news/moldovas-homosexual-war-against-the-family (last accessed Mar. 6, 2012 and no longer available) [hereinafter Report from Moldova]; See also, Jim Burroway, Scott Lively Warns of Outbreak of Homosexuality in Moldova, Part of a Secret Plan by the Homosexual Powers of the EU, Box Turtle Bulletin (Mar. 6, 2011), http://www.boxturtlebulletin.com/2011/03/06/31159. 19 Id. 20 Id. 21 Report from Moldova, supra note 18.
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purpose in Moldova was not simply to speak his mind or preach his beliefs, but to ensure that LGBTI Moldovans were fair game for blatant discrimination - a success he again claimed he was instrumental in achieving.22 64. LIVELY'S actions in Moldova, Latvia, Russia, Lithuania and elsewhere
reveal that his role in Uganda was not an aberration or something that came about by accident but part of his much larger scheme to promote and help enshrine discrimination against LGBTI persons around the world, proudly boasting that he has traveled to over 40 countries to push his agenda. 65. In Redeeming the Rainbow, LIVELY identifies two primary tactics to be
used in disposing of the gay movement: (1) criminalize advocacy undertaken by LGBTI rights advocates; and (2) sound alarms about supposed dangers to children posed by gays and the gay movement, and conflate sexual violence against children with LGBTI orientation or identity. 66. In a January 2010 press statement, LIVELY acknowledged that his 2009
efforts and teachings in Uganda were drawn from Redeeming the Rainbow.23 Criminalizing Advocacy 67. LIVELY identified the need to silence advocacy by LGBTI individuals in
Redeeming the Rainbow.24 As early as 2006, he had begun to advocate more forcefully in Uganda and elsewhere for the criminalization of advocacy, as necessary for silencing individuals who support the rights of LGBTI individuals. As he advised allies in Russia in 2007:
22
Scott Lively, CHRISTIAN RED ALERT, Scott Lively Ministries, July 9, 2012, http://www.scottlively.net/2012/07/09/christian-red-alert/. 23 Press Statement, Defend the Family Intl Endorses Revised Uganda Bill (Jan. 10, 2010), available at http://www.defendthefamily.com/pfrc/newsarchives.php?id=4331082. 24 Redeeming the Rainbow, supra note 7, at 9.
20
[C]riminalize the public advocacy of homosexuality . . . [H]omosexuality is destructive to individuals and to society and it should never [sic] publicly promoted. The easiest way to discourage gay pride parades and other homosexual advocacy is to make such activity illegal25 68. LIVELY again emphasized the need to employ his strategy when he was
in Uganda in 2009. Thus, the Anti-Homosexuality Bill proposed shortly after the March 2009 Anti-Gay Conference would render Plaintiffs work and mere existence illegal. Clause 13 of the Bill would criminalize and jail anyone who: (a) participates in the production, procuring, marketing, broadcasting, disseminating, publishing of pornographic materials for the purposes of promoting homosexuality; (b) funds or sponsors homosexuality or other related activities; (c) offers premises and other related fixed or movable assets for purposes of homosexuality or promoting homosexuality; (d) uses electronic devices which include internet, films, mobile phones for purposes of homosexuality or promoting homosexuality and; (e) who acts as an accomplice or attempts to promote or in any way abets homosexuality and related practices. 69. Clause 13, paragraph 2 of the bill would shut down a corporate body,
business, association or non-governmental organization if guilty of any promoting, and the director or proprietor would face imprisonment for seven years. 70. Since the filing of the original complaint in this matter, defendant
LIVELY has further reiterated that he is against advocacy and that homosexuality should be criminalized so that advocacy can be criminalized as well.26
25
Scott Lively, Letter to the Russian People, Oct. 15, 2007, available at http://www.defendthefamily.com/pfrc/archives.php?id=5225300 (last visited May 9, 2012) (emphasis added). 26 Roadkill Radio, supra note 16.
21
71.
As set forth in more detail below, even without the bill becoming law,
government officials have criminalized the advocacy of Plaintiff and allied organizations and advocates, including raiding trainings, meetings and workshops, threatening arrests and banning of organizations. Conflating Gay Sexual Identity with Predilection for Child Sexual Violence 72. In Redeeming the Rainbow, LIVELY records what has been the most
effective and chilling of his contributions to the persecution in Uganda a tactic he himself directly employs as part of the broader campaign of persecution there: to attribute to gays the goal of recruitment of children and a corresponding predisposition toward rape and sexual violence toward children. Public sympathy for gays as victims is not grounded in logic, but in emotion. This is one reason why more women (who tend to be interested in emotional and relationship factors) than men embrace the gay cause. ... Long ago I stopped trying to educate pro-gay sympathizers about the unpleasant particulars of gay behavior, because it only made them angrier. An effective strategy is to emphasize the issue of homosexual recruitment of children. The protection of children trumps any argument for gays as societal victims. Once parents and grandparents accept that recruitment of children is possible, they become interested in seeing all the evidence against the idea of gay legitimacy...27 (emphasis added) 73. In Uganda, LIVELY combined and expanded upon this theme with
repeated references to and descriptions of sexual violence against children. 74. The premise of LIVELYS most effective and most-used strategy has been
shown to be utterly baseless and without merit. Not only is there no evidence of a connection between adult homosexuality and child molestation, studies have shown that
27
Redeeming the Rainbow, supra note 7 at 113.
22
adult males who identify as gay are actually less likely to commit acts of child molestation than adult males who identify as heterosexual.28 Nevertheless, demonizing this community and spreading sensationalistic myths about the violent dangers posed by the LGBTI community was necessary to the campaign of persecution and to instill sufficient fear to justify wholesale denial of rights to this community.
The 2009 Anti-Gay Conference and Its Aftermath 75. The Anti-Gay Conference was organized by Stephen LANGA, the long-
time associate of LIVELY and Executive Director of the Family Life Network. It was held from March 5-7, 2009, at the Kampala Triangle Hotel. The Conference was attended by high-profile religious and government leaders, parliamentarians, police officers, teachers, and parents. 76. To promote his campaign with LANGA, LIVELY wrote a blog while in
Kampala for the Anti-Gay Conference in which he advertised that he was teaching about the gay agenda in churches, schools, colleges, community groups and in parliament.29 77. He noted that his time there began with a meeting of about fifty members
of the Ugandan Christian Lawyers Association, then an address to members of the Parliament the following morning with about fifty to one hundred persons in attendance, including numerous legislators and the Minister of Ethics and Integrity [James BUTURO]. 78. four hours. At one point during this trip, he met with members of Parliament for over
28
See, e.g., Jim Burroway, Testing the Premise: Are Gays a Threat to Our Children?, Box Turtle Bulletin (Oct. 16, 2006), available at http://www.boxturtlebulletin.com/Articles/000,002.pdf. 29 Lively Report from Uganda, supra note 14.
23
79.
LIVELY notes that, at the Anti-Gay Conference, he gave a series of three
lectures, lasting most of the day and also had private conversations with several influential leaders. He ended his week there with a strategy and brainstorming session with a small group of key Christian activist leaders. 80. LIVELY was the headliner at the Anti-Gay Conference and told the
audience that he had been focusing on the topic of the gay movement for more than twenty years. As a result, he claimed, he knew more about this than almost anyone in the world.30 81. Among other things, LIVELY implemented his central strategy to conflate
LGBTI orientation and identity with sexual violence against children and attribute criminal, violent behavior to LGBTI individuals throughout his lectures. He argued: There are a number of people that are very predatory; they are very sexually oriented, that want to satisfy their sexual desires. And, often these are people that were molested themselves. And theyre turning it around and they are looking for other people to be able to prey upon, and that they, when they see a child thats from a broken home, its like they have a flashing neon sign over their head. and Male homosexuality has historically been not adult to adult; its been adult to teenager. Its called pederasty [] [a]nd uh, this is not uncommon. And its very common. Thats the thing; I was hearing testimonies last night at the meeting that I was in of people standing up and saying the height of homosexuality that um that is often, that we are dealing with in Uganda is pederasty, adults sodomizing teenage boys.31 82. At the Anti-Gay conference, LIVELY attempted to substantiate his
assertion about a gay propensity toward sexual violence toward children with
30
Transcript of Seminar on Exposing the Homosexual Agenda, Uganda (Mar. 5-7, 2009) (on file with counsel). 31 Id.
24
authoritative references to his book, The Pink Swastika. He attributed the genocides in Germany and Rwanda to supermacho gays and thereby insinuated that Uganda may be subject to similar genocidal fates unless it followed his strategy for the eradication of LGBTI identity and advocacy: The Nazis were super macho the storm troopers, the ones that helped Hitler come to power, the ones that would go and smash windows, jack booted thugs. You also see them in prisons. The super machos are very often brutish, brutish, animalistic, uh men that want to hurt other people. You know, there is no mercy in them Men having sex with boys and other men usually in some sort of aggressive way. Lastly, you have what I call the monsters They are so far from normalcy that they're killers, they're serial killers, mass murderers. They're sociopaths. There's no mercy at all, there's no nurturing, no caring about anybody else. This is the kind of person it takes to run a gas chamber or to do a mass murder you know like the Rwandan stuff, probably involved these guys.32 (emphasis added) 83. Subsequent to the strategy laid out in the Anti-Gay conference, and as set
forth below, LANGA, SSEMPA, BUTURO, and BAHATI began to sensationalize the purported threat gays posed to children as the primary reason for suppressing the rights of LGBTI individuals. 84. Consistent with LIVELYs strategy, the association of gays with
sexualized violence against children is picked up and amplified by others that join the cause, both in Parliament and among civil society. Several newspapers seize this message to begin campaigns to out LGBTI individuals and run sensationalistic headlines about the supposed dangers gays present to Ugandan children.
32
Scott Lively Fanning Anti-Gay Flames in Uganda (Video), http://www.youtube.com/watch?v=BTcI6YssQ1w (last access May 9, 2012).
25
85.
Subsequent to the filing of the original complaint in this matter, LIVELY
acknowledged that he returned to Uganda in 2009 to help the efforts to strengthen the laws and embolden the leaders of society so that when the law came out theyd have an easier time implementing it.33 86. LIVELY also acknowledged reviewing and commenting upon the draft of
the bill before it was introduced.34 87. In particular, LIVELY has admitted to urging the extremely coercive
inclusion of conversion therapy an effort geared to forcing sexual orientation change that has been widely discredited as extremely harmful and ineffective and in some cases amounting to torture.35 88. Shortly after the Conference, LIVELY wrote about the impact of his time
in Uganda in provocative terms: [M]y host and ministry partner in Kampala, Stephen LANGA, was overjoyed with the results of our efforts and predicted confidently that the coming weeks would see significant improvement in the moral climate of the nation, and a massive increase in pro-family activism in every social sphere. He said that a respected observer of society in Kampala had told him that our campaign was like a nuclear bomb against the gay agenda in Uganda. I pray that this, and the predictions, are true.36 89. LIVELY later stated, I'm proud of that, and I hope the nuclear bomb
spreads across the whole world, against the gay movement.37
33 34
Roadkill Radio, May 10, 2012. Id. 35 Id. 36 Lively Report from Uganda, supra note 16. 37 Anti-Homosexual Bill in Uganda causes Global Uproar, ABC News/Nightline (Mar. 10, 2010), http://abcnews.go.com/Nightline/anti-homosexuality-bill-uganda-globaluproar/story?id=10045436&page=3#.T1Vw3IePXw0.
26
90.
LIVELY has said he is honored to be considered the father of what he
characterizes as Ugandas pro-family movement. But, he also attributes real fatherhood to his co-conspirator i.e., my good friend Stephen LANGA who organized the first national pro-family conference there in 2002 of which I was the keynote speaker.38 91. LIVELY has continued to use violent fear-mongering and take affirmative
steps after the Anti-Gay Conference in order to sustain and build support inside Uganda to criminalize advocacy and eliminate fundamental human rights protections for LGBTI individuals. 92. In February 2011, LIVELY wrote a blog piece entitled Murdering
Uganda where he provocatively challenged Ugandans to fight back against the rape and murder of their culture by the lavender Marxists, i.e., LGBTI people who advocate for their rights.39 93. By repeatedly characterizing the LGBTI community as rapists and
murderers and child abusers not to mention possessing the genocidal tendencies of the Nazis and Rwandan conspirators LIVELY deliberately invited, induced and encouraged a proportional response from Ugandans i.e., severe repression, arrest and certainly even violence. Stephen Langa 94. STEPHEN LANGA is Executive Director of the Family Life Network in
Uganda, and Director of the Ugandan branch of the Arizona-based Disciple Nations
38
Scott Lively, Father of Ugandas Pro-Family Movement, Jul. 6 2010, available at http://www.defendthefamily.com/pfrc/newsarchives.php?id=1310183 (last visited Mar. 13, 2012). 39 Defend the Family International, Murdering UgandaFeb. 5, 2011, available at http://www.defendthefamily.com/pfrc/newsarchives.php?id=5422609 (last visited Mar. 13, 2012).
27
Alliance. LIVELY has referred to LANGA as his good friend and ministry partner.40 Since 2002, LANGA has worked in concert with LIVELY and other co-conspirators named in this Complaint on a campaign to systematically persecute LGBTI individuals and deny them fundamental human rights by attempting to criminalize their advocacy and their very status, denying them equality under the law and intimidating them from participation in civic life. 95. Following LIVELYs strategic direction, LANGA and LIVELY and
others accomplished this goal in concert by demonizing gays and lesbians, attributing to them criminal propensities to recruit and sexually abuse children. 96. As set forth above, LANGA in concert with LIVELY and other co-
conspirators, has played a key role in setting and implementing the anti-gay agenda in Uganda. 97. In 2004, LANGA launched the Uganda National Parents Network
because, according to LANGA, children are indiscriminately exposed to pornography which he described as a silent deadly virus which he equated with homosexuality, alleging that the damaging effects are already evidence in many schools... homosexuality and lesbianism are spreading like wild fire in schools.41 98. In 2006, LANGA worked very closely with James BUTURO to beat back
a Commonwealth Initiative as part of an Equality Bill aimed at providing protections for
Id.; Lively Report from Uganda, supra note 16; Scott Lively, Witness to Revival in Africa: A Report of the Ministry of Scott and Anne Lively in Uganda, Kenya and Egypt, June 12-25, 2002 (Abiding Truth Ministries 2002), available at http://www.defendthefamily.com/_docs/resources/3038513.pdf (last visited Mar. 13, 2012). 41 Denis Ocwich, Children Exposed to Pornography: Is Your Child Safe from Pornography?, New Vision (Kampala) (Sept. 22, 2004), available at http://tg-media.blogspot.com/2004/09/children-exposed-topornography.html.
40
28
minorities, including LGBTI persons, and boasted about his influence and effectiveness in doing so. 99. In December 2008, when the Ugandan High Court ruled in the case of
Victor Mukasa and Yvonne Oyo v. Attorney General that two individuals who were victims of outrageous police conduct were entitled to have rights, including the right to privacy and freedom from unlawful search and arbitrary detention and cruel treatment, despite being cast as homosexual, LANGA sounded the alarm. 100. Within three months of this ruling, LANGA organized the March 2009
Anti-Gay Conference in Kampala. The Anti-Gay Conference emerged in reaction to the prospect that LGBTI members might receive the protection of law for the most basic of rights. 101. In organizing the Anti-Gay Conference, LANGA equated the basic
protection of law with what he described nefariously as the gay agenda that whole hidden and dark agenda.42 LANGA ensured that LIVELY and his strategies would be prominently featured to defeat this dark agenda to secure human rights for LGBTI individuals. 102. To open the Conference, LANGA stated that existing Ugandan law, which
provides the possibility of life imprisonment for those convicted of homosexual acts, was not strong enough. In other words, he was advocating for penalties tougher than life imprisonment. LANGA repeatedly referred throughout the conference to the Mukasa case as illustrating why the law was not strong enough.
42
Jeffrey Gettleman, Americans Role Seen in Uganda Anti-Gay Push, NY Times, Jan. 3, 2010, available at http://www.nytimes.com/2010/01/04/world/africa/04uganda.html?_r=1.
29
103.
LANGA, along with LIVELY, met with parliamentarians at length, in
conjunction with the Anti-Gay Conference, as well as other political leaders, schools and churches. LANGA also organized a media blitz while LIVELY was in town and some of the proceedings from the conference were aired on national television. 104. At the conclusion of the Conference, LANGA stated that participants at
the meeting were moved by what he termed shocking and worrying revelations LIVELY made about the level of defilement and recruitment of school boys and girls into homosexuality and lesbianism. 105. Immediately after the Anti-Gay Conference, LANGA called for urgent
follow-up meetings which were held on March 15 and March 22, 2009. 106. In the meetings, LANGA drew in large part from LIVELYS book, The
Pink Swastika, as well as LIVELYS talks at the Conference and emphasized LIVELYS theory about the violent and fascist tendencies of the gay movement and the danger it poses to children and society. LANGA led participants in identifying strategies and goals to strengthen laws on homosexuality to fight the gay agenda, including pressuring the government to stop any funding to promote equality and human rights in Uganda. 107. Members of Parliament attended and actively participated at the strategy
meetings. Members openly stated that they were deeply alarmed and affected by LIVELYS interventions and that he made it clear they needed to strengthen their laws along the lines suggested by LIVELY. 108. On March 25, 2009, LANGA held a press conference that was aired live
on local television stations and covered in the print media to agitate concerns over what he claimed were increasing levels of homosexuality, defilement and sexual harassment of
30
children and to warn that there were agents involved in recruiting children into homosexuality and lesbianism. 109. On or about April 21, 2009, LANGA and a group of his anti-gay
supporters marched on Parliament and met with Deputy Speaker of Parliament Rebecca Kadaga. LANGA and his followers demanded the government conduct an investigation into private lives to determine the prominence and impact of homosexuality in Uganda and pass severe laws to punish people involved in acts of homosexuality. 110. LANGA reportedly took offense that homosexuals had continued to roam
the country freely even where homosexuality is illegal according to the Constitution and Penal Code.43 111. LANGA also reportedly pointed out that while same-sex marriage was
prohibited, the act of officiating or assisting with such marriages had not been criminalized, but needed to be. Kadaga reportedly commended LANGA and his followers for their solidarity against homosexuality and agreed that Parliament would strengthen current legislation.44 112. On April 29, 2009, Member of Parliament David BAHATI sought and
obtained approval to table the legislation LANGA and LIVELY had been advocating for and assisting with. The draft of the legislation, entitled the Anti-Homosexuality Bill, reflected much of LIVELYS theory and content from the sessions at the conference and associated meetings.
43
Uganda Government News: Civil Society Petitions Parliament Over Homosexuality Vice, Ultimate Media, (Apr. 23, 2009, 9:33:06 AM), http://www.ugpulse.com/uganda-news/government/civil-societypetitions-parliament-over-homosexuality-vice/9749.aspx. 44 Id.
31
113.
LANGA was present in the parliamentary session when BAHATI
introduced the bill, and his presence, along with that of Martin SSEMPA, was noted by the speaker and other parliamentarians and is reflected in the official report of the session.45 114. Promoting LIVELYs strategy of criminalizing advocacy, LANGA was
quoted in the press as saying: Providing literature, writing books about it, standing up and saying it is OK you should be arrested. Even if you are not in the act, you should be arrested. Anybody who tries to promote it should be arrested. That's why we need a stronger law.46 115. On May 6, 2011, LANGA testified before the Legal and Parliamentary
Affairs committee of the Ugandan Parliament in support of passage of the bill and reportedly told the committee members to have it passed immediately in order to protect children from being violated by what he called homosexual promoters.47 LANGA stressed that the Committee should not listen to gays who say the new bill will abuse their human rights because homosexuality has never been a human right.48 116. In September 6, 2011, LANGA, spearheading a combined effort of the
Family Life Network and the Uganda Coalition for Moral Values, launched another campaign demanding passage of the Bill. This effort was simply called Pass the BILL
Initial Parliamentary discussion about Ugandas Anti-Homosexuality Bill 2009, Parliament House, Kampala, Uganda ( Apr. 29, 2009), available at http://wthrockmorton.com/initial-parliamentarydiscussion-about-ugandas-anti-homosexuality-bill-2009/. 46 Gwen Thompkins, Taboos Silence Opponents of Uganda Anti-Gay Bill, NPR (Dec. 16, 2009), available at http://www.npr.org/templates/story/story.php?storyId=121485018. 47 Uganda Parliament Starts Public Hearings on Anti Homosexuality Bill, Welenformers (May 6, 2011). available at http://www.weinformers.net/2011/05/06/uganda-parliament-starts-public-hearings-on-antihomosexuality-bill/. 48 Id.
45
32
Now. At the launch of the campaign, LANGA stated: We sound a serious warning that we will recall any MP who betrays our children, our people and our nation.49 117. On February 7, 2012, the bill was introduced again in its original form,
and punishes consensual, adult homosexual activity with life imprisonment or death. 118. Subsequent to the filing of the original complaint in this matter, LANGA
again used the purported danger to children as justification for their persecutory efforts: It is now approaching three years since we first raised an alarm and made public the molesting, defilement and recruitment of our children into homosexuality in schools and institutions of higher learning. To date, our children are still vulnerable and no tangible deterrent action has been put in place to safeguard them and the nation from the vice of homosexuality.50
Martin Ssempa 119. Martin SSEMPA is an anti-gay extremist activist, pastor and founder of
the Makerere Community Church in Kampala. As with LANGA, LIVELY has known and worked in concert and coordination with SSEMPA at least since 2002, when SSEMPA co-sponsored the conference at which LIVELY was the keynote speaker. LIVELY then described him as one of the leading media figures in the nation.51 120. SSEMPA is known for employing forced outings, homosexual
exorcisms, and showing graphic pornography to his church congregation as well as for other controversial, vitriolic and threatening actions, in order to further his efforts to deny the humanity of LGBTI individuals.
49
Parents Launch Bid to Pass Shelved Gays Bill, Daily Monitor (Dec. 5, 2011), available at http://www.monitor.co.ug/News/National/-/688334/1230484/-/bjcqkmz/-/. 50 Rodney Muhumuza, Ugandas Gays See Progress in Public Opinion War, The Associated Press, Mar. 20, 2012. 51 Lively Report from Uganda, supra note 16.
33
121.
As early as 2003, SSEMPA was involved in building government policy
to exclude LGBTI persons from HIV/AIDS prevention programs and policies. 122. On or about August 16, 2007, LGBTI groups attempted to counter the
mounting denials of their rights and increasing private and public harassment. They held a press conference to launch a campaign entitled Let Us Live in Peace. 123. SSEMPA answered their plea to live in peace by organizing a rally on
or about August 21, 2007, as a call for action on behalf of victims of homosexuality. 124. Minister of Ethics and Integrity James BUTURO addressed those in
attendance at the rally to show his support and stated, Must press freedom be used to subvert one of our cardinal founding laws (prohibition of homosexuality)?52 125. SSEMPA, who had previously testified before the U.S. Congress on the
HIV/AIDS situation in Uganda as a Special Representative of First Lady Janet Musevenis Task Force on AIDS and whose church received HIV-prevention funding through the U.S. Plan for AIDS Relief program (PEPFAR), further declared at the rally that, Homosexuals should absolutely not be included in Ugandas HIV/AIDS framework. It is a crime, and when you are trying to stamp out a crime you dont include it in your programmes.53 126. In conjunction with the August 21, 2007 rally, SSEMPA issued a
statement on behalf of the rally organizers that was posted on a website listing Ugandan
52 53
Katherine Roubos, Uganda: Rally Denounces Homosexuality, The Monitor (Aug. 22, 2007). Uganda: State Homophobia Putting Gays at HIV risk, PlusNews (Aug. 24, 2007), available at http://www.plusnews.org/report.aspx?ReportID=73931.
34
LGBTI rights advocates by name, along with their photos and contact information and labeling them homosexual promoters.54 127. Following SSEMPAs public identification of the activists, officials of the
Museveni government, including BUTURO, condemned the activists and demanded their arrest. 128. The combination of the forced outings, naming of the activists with photos
and contact information, and the calls for arrests of LGBTI people had its intended effect it terrified the LGBTI community and forced many LGBTI-rights advocates into hiding. 129. SSEMPA took part in the March 2009 Anti-Gay Conference and meetings
that LANGA organized to showcase LIVELY and his strategies to eradicate the rights of the LGBTI community. 130. SSEMPA further took part in the planning and strategizing around the
effort to further criminalize sexual orientation and gender identity in the aftermath of the meetings, including the march on Parliament organized by Stephen LANGA on April 24, 2009, when they demanded an investigation into homosexual practices and strengthening the laws. 131. On or about February 15, 2010, SSEMPA and two other pastors led
demonstrations in the town of Jinja. At the rally, SSEMPA again stressed that children in
Human Rights Watch, Letter to Congressional Caucus about US support for Ugandan Homophobia (Oct 12, 2007), available at http://www.hrw.org/news/2007/10/10/letter-congressional-caucus-about-us-supportugandan-homophobia [hereinafter HRW Letter to Congress].
54
35
schools were the biggest victims of gay acts. He told an angry crowd: They are raped violently by bullies in the school.55 132. In February 2010, SSEMPA began showing graphic gay pornography to
those congregated at his church. By way of justification, he stated: The major argument homosexuals have is that what people do in the privacy of their bedrooms is nobodys business but do you know what they do in their bedrooms?56 133. During this first screening of porn at the church, SSEMPA also railed
against human rights organizations for attempting to convert people to lesbianism.57 134. In October 2010, SSEMPA was featured in an exclusive interview in The
Rolling Stone newspaper issue that displayed photos of SEXUAL MINORITIES UGANDA Advocacy Officer David Kato under the banner HANG THEM. 135. The tabloid was started up by two students at Makerere University who
were affiliated with SSEMPA and who are also believed to belong to his church. They continued the outing practices begun by SSEMPA and the pedophilia scare strategies of LIVELY. 136. The centerfold of the tabloid contained the large headline: HANG
THEM; THEY ARE AFTER OUR KIDS!! 137. SSEMPA gave an exclusive interview which was published in the issue
in which he was quoted as saying, We shall fight on until we rescue our country from the hands of evil This war has just started.58
Jim Burroway, Despite Protest Ban, Hundreds of Ugandans Call for Killing Gays, Box Turtle Bulletin (Feb. 16, 2010), available at http://www.boxturtlebulletin.com/2010/02/16/20320. 56 Uganda Pastor Screens Gay Porn In Church, AFP (Feb. 17, 2010), available at http://www.google.com/hostednews/afp/article/ALeqM5hyJex4vkO1MYbS3sVu8PBYCml2Lg. 57 Id. 58 Rolling Stone Article, supra note 4.
55
36
138.
Subsequently, the tabloid published its November 1-8, 2010, issue which
was also devoted to outing more homos and included their photos. The sub-headings on the cover page this time asserted: Homosexuality Escalates Cases of HIV/AIDS, Gonorhea [sic] and Syphilis, Sodomy Honchos Plot Downfall of Catholic-Founded Schools, and Chilling Confession: Heartless Lesbians Destroyed My Life At Age 16. 139. When asked about SSEMPAS involvement in the anti-gay campaigns,
LIVELY responded that he thinks SSEMPA is a good man hes trying to protect all of the children of his country from being homosexualized.59 140. In late 2010, LIVELY also acknowledged that he has used SSEMPA to
communicate with the leadership in the Uganda Parliament about the AntiHomosexuality Bill by channeling correspondence through him. James Nsaba Buturo 141. James BUTURO served as President Musevenis Minister for Information
and Broadcasting from 2001 until 2006, at which time he was appointed Minister for Ethics and Integrity in the Office of the Vice-President. 142. BUTURO had been one of the most prominent anti-gay voices in the
government of President Museveni by the time of the 2009 Anti-Gay Conference that showcased LIVELY and was closely allied with LANGA and SSEMPA in their combined efforts to eradicate homosexuality before and after the Conference. 143. LIVELY met with BUTURO at length when he was in Uganda in March,
2009.60 Subsequent to the filing of the original complaint in this matter, LIVELY again
59 60
Missionaries of Hate, supra note 3. Lively Report from Uganda, supra n. 16.
37
acknowledged his interactions with BUTURO in March 2009 when they both addressed members of the Ugandan Parliament in the Assembly Hall.61 144. BUTURO, who was Minister of Ethics and Integrity at the time, told those
in attendance at the conference that he would be submitting a bill on homosexuality and that the government would not end at making laws against homosexuality but would further engage schools and churches in the fight against this vice. 145. Subsequently, BUTURO raised publicly in the media the possibility of
adding a clause providing for forced conversion therapy, a measure first advocated by LIVELY. 146. Following LIVELYs goals of criminalizing advocacy, BUTURO has
used his positions as Minister of Information and Broadcasting and Minister of Ethics and Integrity to silence and censor media relating to LGBTI advocacy, as well as to block access to other government services. 147. In 2004, as Minister of Information, BUTURO warned the UN AIDS and
the Uganda AIDS Commission against including LGBTI members and messaging in HIV/AIDS initiatives and mechanisms, stating that homosexual conduct was illegal in Uganda.62 148. Also in 2004, BUTURO ordered police to take appropriate action
against a gay organization that had allegedly started up at Makerere University.63
61 62
Janet Mefferd Show, May 4, 2012. HRW Letter to Congress, supra note 54; Uganda: Stuck in the Closet: Gays Left out of HIV/AIDS Strategy, Plus News, Mar. 17, 2006, available at http://www.plusnews.org/report.aspx?reportid=39429 (last visited Mar. 13, 2012). 63 Mwanguhya Charles Mpagi and Hussein Bogere, Police Told to Probe MUK Gays, The Monitor, Oct. 29, 2004.
38
149.
BUTURO also severely criticized the media in 2004 for misusing press
freedom to promote pornography, which he claimed breeds homosexuality. 64 150. In October of 2007, as Minister of Ethics, in response to recommendations
by the Commonwealth Peoples Forum to better address issues of minority rights, including those of LGBTI persons, he asserted, The Government shall do whatever it takes to block the spread of homosexuality. . . . They are trying to impose a strange, ungodly, unhealthy, unnatural, and immoral way of life on the rest of our society. I will endeavor to block it. I can assure you on that. Let them go to another country, and not here.65 151. In December, 2010, as Minister of Ethics, he blocked a showing of a
documentary about gay rights which was sponsored by the United Nations Office of the High Commission for Human Rights, the Uganda Human Rights Commission and the Human Rights Centre, Uganda. The film, which BUTURO labeled promotion of homosexuality, depicted some of the difficulties in dealing with anti-gay discrimination in Uganda 152. In 2007, as Minister of Ethics and Integrity, BUTURO announced that
there would be work on a tough new law aimed at criminalizing the promotion of homosexuality and that the government was interested in having catalogues of people we think are involved in perpetuating the vice of homosexuality.66
64 65
Id. Conan Businge, Buturo Vows to Fight Homosexuality, African Viel (Oct. 8, 2007), http://72.249.167.221/~ndanjiv/index.php?option=com_content&view=article&id=1008:buturo-vows-tofight-homosexuality&catid=62:uganda (last visited Mar. 13, 2012); see also Uganda Ethics Minister Advises Gays to Leave the Country, Rod 2.0 (Sept. 4, 2007), available at http://rodonline.typepad.com/rodonline/2007/09/uganda-ethics-m.html (last visited Mar. 13, 2012). 66 Tough Anti-Gay Law Due, Interview by Alfred Wasike with Minister for Ethics and Integrity, James Nsaba Butro, Sunday Vision (Aug. 25, 2007),
39
153.
In response to the launch of the Let Us Live in Peace campaign initiated
by LGBTI groups, BUTURO denied that there had been harassment of the LGBTI community, but stated We know them, we have details of who they are.67 154. BUTURO also expressed outrage that homosexuals are working through
the electronic and print media and advised that the government would not hesitate to deal with those we think are part of the conspiracy [to infiltrate the media].68 155. Subsequent to the March 2009 Anti-Gay Conference, BUTURO appeared
in tandem with LANGA to continue advocating for laws to further suppress the rights of LGBTI individuals. 156. In September 2010, BUTURO stated to press that, the days of
homosexuals are over.69 David Bahati 157. David BAHATI is a Member of Parliament from the district of Ndorwa
West in Uganda and belongs to the National Resistance Movement, the ruling party of Uganda founded by President Museveni. 158. BAHATI attended the 2009 Anti-Gay Conference and met at length with
LIVELY, LANGA, SSEMPA, and BUTURO. 159. Approximately one month after the Anti-Gay Conference, BAHATI
introduced the Anti-Homosexuality Bill as a private members bill after making a special motion to introduce the legislation, at which time the first draft of the bill was tabled.
http://sundayvision.co.ug/detail.php?mainNewsCategoryId=7&newsCategoryId=130&newsId=583179 (last visited Mar. 13, 2012) [hereinafter Butro Interview]. 67 HRW Letter to Congress, supra note 54. 68 Buturo Interview, supra note 65. 69 Anna Smith and Geof Magga, Ugandas Anti-Pornography Law to Fight Homosexual Vice, Afrik News, Sep. 8, 2010, available at http://www.afrik-news.com/article18213.html (last visited Mar. 13, 2012).
40
160.
BAHATI did so with the full support and encouragement of BUTURO,
LANGA, LIVELY and SSEMPA. 161. LIVELY continued to correspond with BAHATI subsequent to the
introduction of the bill to advise on the contents of the legislation. 162. Following LIVELYS lead, and like LANGA, SSEMPA and BUTURO,
BAHATI too has repeatedly justified the Bill on the basis of the need to protect children from sexual predation and recruitment, and thereby conflating sexual orientation with sexual violence. 163. To justify the Anti-Homosexuality Bill, BAHATI presented an 11-year-
old boy who had been raped and was present in the gallery. BAHATI did not bother to discuss whether the alleged perpetrator was actually gay but assumed it for purposes of his presentation of the Bill. He went on to state: Reports of this nature have come out in the recent past and I know that for each [name of victim]70 we read about, there are thousands whose stories are unexposed and never make it to the headlines. Many people have been crying for our help and no more should we be silent about this creeping threat of homosexuality to our children and our families.71 164. In December 2011, BAHATI stated: This is a defining bill for our country,
for our generation. You are either anti-homosexual or youre for homosexuals, because theres no middle point. Anybody who does not believe that homosexuality is a crime is a sympathizer."72
70
Victims name has been omitted by Plaintiff in order to protect him from further exposure and traumatization. 71 Parliament of Uganda, Hansard, supra note 2. 72 Thompkins, supra note 39.
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Severe Deprivation of Fundamental Rights By Reason of the Identity of the Group or Collectivity June 18, 2012 Raid and Banning of Organizations that Support LGBTI Rights 165. On June 18, 2012, Ugandan police raided a skills-building workshop for
LGBTI rights advocates from East Africa that was being held at the Esella Country Hotel outside Kampala. 166. The workshop was organized by the East and Horn of Africa Human
Rights Defenders Project and brought together approximately 20 defenders of LGBTI rights from Uganda, Kenya, Tanzania and Rwanda. 167. after it began. 168. Advocates and workshop organizers, as well as some hotel staff guests, The workshop was intended to be a three-day event but was raided shortly
were held in police custody for over three hours while police attempted to identify and detain the participants. 169. Three people associated with the group that organized the workshop and
three other workshop participants were additionally detained in a police bus for approximately one hour. 170. Frank Mugisha, Executive Director of SEXUAL MINORITIES
UGANDA, was the opening speaker at the workshop on the morning of the raid and other staff of SEXUAL MINORITIES UGANDA were present at the workshop and detained along with other participants. 171. Ugandan Minister of Ethics and Integrity Simon Lokodo acknowledged
publicly that he was involved in the decision-making to raid the workshop and stated
42
afterward that the government was seeking to have LGBTI activists arrested so that everybody else will know that at least in Uganda we have no room here for homosexuals and lesbians.73 172. The raid of the workshop, the detention and threat of arrests were in
violation of Plaintiff's rights to freedom of expression, assembly and association and to be free from arbitrary arrest and detention. The raid, detention and threat of arrest of Plaintiff's staff have also directly harmed and impaired Plaintiff's ability to carry out its purpose, as it has hindered its works and requires additional precautions in Plaintiff's attempts to exercise its rights and advocate on behalf of the LGBT community in Uganda. 173. On June 20, 2012, Lokodo announced that he had finalized arrangements
to de-register 38 non-governmental organizations, including humanitarian and human rights organizations, to prevent them from operating in Uganda for allegedly promoting and recruiting children into homosexuality. 174. The Minister's announcement of the Government's intention to deregister
these organizations has had a chilling effect on these organizations and has also harmed and impaired Plaintiff its ability to work with these organizations in Uganda to combat discrimination against LGBTI people because of their fear of being associated with the Plaintiff and LGBTI issues and being forced to shut down. The move has further isolated and stigmatized Plaintiff in its work. 175. Plaintiff SEXUAL MINORITIES UGANDA has not even been permitted
to register as an non-governmental organization in the first place, which has directly
73
Gay Activists to be Charged After Investigations, NTV, June 19, 2012. Available at: https://www.youtube.com/watch?feature=player_embedded&v=JIZpU04i7eM.
43
impaired and harmed its efforts to carry it out it legitimate purpose to advocate on behalf of the rights of LGBTI people in Uganda, and to fundraise for resources necessary to achieve that purpose. February 14, 2012 Raid 176. On February 14, 2012, SEXUAL MINORITIES UGANDA and one of its
member organizations, Freedom and Roam Uganda, were wrapping up a two-week conference on LGBTI issues that drew together approximately thirty participants at the Imperial Resort Hotel in Entebbe, a major city in Central Uganda, approximately forty minutes from Kampala, the Capital. 177. The conference was not advertised and was by invitation only. Organizers
had requested that the hotel employees not send anyone to the conference room unless previously approved. 178. The conference was aimed at empowering members with essential life
skills and provided training on leadership skills, self-improvement, and human rights advocacy. 179. Around noon on February 14, 2012, during a session that was being
facilitated by Dr. Hilda Tadria, co-founder of the African Womens Development Fund, the Minister of Ethics and Integrity, Simon Lokodo, accompanied by the police, entered the conference room and declared the meeting illegal. 180. 181. Lokodo demanded to see conference materials and seized what was there. When the conference organizer, Kasha Jacqueline Nabagasera, challenged
Lokodo on the illegality of his actions, he ordered that she be arrested.
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182. her safety. 183.
Nabagasera had to flee the hotel to avoid the unlawful arrest and feared for
Lokodo justified his actions by asserting that the association among gays
and lesbians was illegal and by equating LGBTI individuals with terrorists: We found out the meeting was being organized by people from within and without They were recruiting people to go out and divulge the ideology of LGBT. In Uganda, the culture, tradition and laws do not support bestiality and lesbianism. They were illegally associating.74 You should not allow people to plan the destruction of your country. You cannot allow terrorists to organize to destroy your country.75 184. In a worrying sign of future persecution in Uganda, Lokodo threatened:
In the past they were stoned to death. In my own culture they are fired on by the firing squad, because that is total perversion.76 185. The raid of the workshop, the detention and threat of arrests were in
violation of Plaintiff's rights to freedom of expression, assembly and association and to be free from arbitrary arrest and detention. The raid, detention and threat of arrest of Plaintiff's staff have also directly harmed and impaired Plaintiff's ability to carry out its purpose, as it must take additional precautions in attempting to exercise its rights and advocate on behalf of the LGBT community in Uganda.
74
David Smith, Ugandan minister Shuts Down Gay Rights Conference, The Guardian, Feb. 15. 2012, available at http://www.guardian.co.uk/world/2012/feb/15/ugandan-minister-gay-rightsconference?newsfeed=true. 75 Id. 76 Josh Kron, Resentment Toward the West Bolsters Ugandas New Anti-Gay Bill, NY Times, Feb. 28, 2012, available at http://www.nytimes.com/2012/02/29/world/africa/ugandan-lawmakers-push-antihomosexuality-bill-again.html?_r=1&pagewanted=all.
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June 4, 2008 Arrest of LGBTI Rights Activists And Ongoing Exclusion from HIV/AIDS Education, Outreach and Services 186. On June 4, 2008, three LGBTI rights activists were arrested as they were
attempting to peacefully protest at the 2008 HIV/AIDS Implementers Meeting in Kampala against the policy of the Uganda AIDS Commission excluding LGBTI persons from the commission's programs. 187. SEXUAL MINORITIES UGANDA staff member Pepe Onziema and Val
Kalende, a founding member of Freedom and Roam Uganda, were arrested and charged with trespass even though they had been invited to the meeting and hosts provided accreditation. The activists were detained for two days and then released on bail. 188. While detained, Onziemas clothing was forcibly removed, and an officer
touched Onziemas genitals for confirmation.77 189. The arrest of Plaintiff's staff member and staff of its constituent
organization was in violation of the right to freedom of expression, assembly and association. The arrests of and harm done to its staff directly impaired and harmed Plaintiff in its ability to carry out its purpose and to advocate for the right to health and non-discrimination in the Government of Uganda's HIV/AIDS policies and practices. 190. The advocates were trying to raise awareness about the discrimination
against LGBTI persons inherent in Uganda's HIV/AIDS program in the wake of public comments by Director General of the Uganda AIDS Commission. Kihumuro Apuuli, who had stated gays are one of the drivers of HIV in Uganda, but because of meagre resources we cannot direct our programmes at them at this time.
77
Glenna Gordon, Being Gay in Uganda: One Couple's Story, Time World, Mar. 8, 2010, available at http://www.time.com/time/world/article/0,8599,1969667,00.html.
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191.
Apuulis comments were consistent with previous statements by a Uganda
AIDS Commission spokesperson, who stated Theres no mention of gays and lesbians in the national strategic framework, because the practice of homosexuality is illegal.78 192. Apuuli's statements followed those of Martin SSEMPA and James
BUTURO the year before when they stated that because homosexuality was evil, state HIV/AIDS programs would not be available to them. 193. The exclusion from the Government's HIV/AIDS policies and practices
constitutes a violation of the right of LGBTI people to be free from discrimination, and a violation of the right to health. Threats to Criminalize and Shut Down Health Services for LGBTI Persons 194. Because of the exclusion of LGBTI people from the national HIV/AIDS
strategies and rampant discrimination and fears of attacks, Plaintiff's staff have had to devote time and resources to assisting HIV-positive LGBTI persons in crisis with finding appropriate medical care, housing and needed resources. The government's discriminatory policies and practices have directly impacted and harmed Plaintiff in its ability to carry out its mission as it has had to endeavor to help meet the needs of LGBTI persons seeking assistance. 195. In light of the ongoing discrimination and stigma, in May 2012, Sexual
Minorities Uganda staff and a member organization undertook efforts to open a health clinic for LGBTI people in Kampala to provide testing, counseling and treatment for HIV/AIDS and other sexually transmitted infections. 196. The location of the clinic has not been made public due to fears of attacks
by government actors and members of the general public.

78
Uganda: Stuck in the Closet, supra note 60.
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197.
On July 11, 2012, Minister of Ethics and Integrity Lokodo told a news
agency that he intends to investigate the clinic for promoting homosexuality: If we find out that [the clinic is] related to promoting the culture which doesnt conform to our morals as a country, we shall instantly ban and close it. These people [LGBTI] are doing their operations under cover its not easy to track them. However, we shall not allow any social gathering, association, infrastructure or any activities that exist to promote homosexuality.79 198. The blatant discrimination by the government in its HIV/AIDS strategies
has directly impacted and harmed Plaintiff in that it has had to devote resources and time to assisting HIV-positive LGBTI persons in finding necessary medical assistance, and in supporting the work of a medical clinic which must operate under cover and in screening and referrals so that the location can remain secret and try to avoid arbitrary and discriminatory closure by Government officials. 2007 Crack-down on Media, Advocacy and Threats of Arrest 199. On August 16, 2007, SEXUAL MINORITIES UGANDA and its member
organizations held a press conference where they launched their "Let Us Live in Peace" campaign, seeking to counter the pervasive and virulent messaging about LGBTI people spouted by the likes of LIVELY, LANGA, SSEMPA, and BUTURO. 200. Less than a week later, Deputy Attorney General Fred Ruhindi called upon
the relevant agencies to take appropriate action because homosexuality is an offence under the laws of Uganda. The penal code in no uncertain terms punishes homosexuality and other unnatural offenses.80
79
Uganda: New LGBTI Clinic Faces Fierce Government Criticism, IRN Plus News, July 11, 2012. Available at: http://www.plusnews.org/Report/95844/UGANDA-New-LGBTI-clinic-faces-fiercegovernment-criticism#.T_2PClZ_p4k.facebook. 80 HRW Letter to Congress, supra note 54.
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201.
Minister of Ethics and Integrity BUTURO also stated that the government
was considering changing the laws so that promotion itself becomes a crime and to have catalogues of people we think are involved in perpetuating the vice of homosexuality. 202. Martin SSEMPA called the Let Us Live in Peace campaign a well-
orchestrated effort by homosexuals to intimidate the government and organized an antigay rally which was held on August 21, 2007, and which BUTURO joined to show his support. 203. SSEMPA demanded stronger government actions against LGBTI people
and called homosexual conduct a criminal act against the laws of nature. 204. In connection with the rally, SSEMPA released The Official Statement of
Inter Faith, Culture and Family Coalition Against Homosexuality in Uganda to the Uganda Government, which listed Uganda LGBTI rights activists by name and posted their photos and contact information and labeled them homosexual promoters.81 205. In August 2007, the Ugandan Broadcasting Council suspended Gaetano
Kaggwa, the manager of Capital FM radio station, for interviewing a lesbian activist on air. The Council alleged a violation of minimum broadcasting standards for unacceptable language used by the activist.82 206. On September 9, 2007, the Red Pepper also published names and photos
of LGBTI activists with the headline on the cover that stated Homo Terror! We Name and Shame the Top Gays in the City.83
81 82
Id. Id. 83 Id.
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207.
In the wake of the onslaught of outings, calls for harsher tactics on the part
of the government, and information that police were actively looking for gay rights activists, a number of activists, including current SEXUAL MINORITIES UGANDA Executive Director Frank Mugisha, were forced to leave the country or go into hiding. 208. As a result, the crackdown and ongoing discrimination, harassment and
persecution have directly harmed the Plaintiff in its ability to carry out its purpose to advocate on behalf of the rights of LGBTI people in Uganda. 2005 Raid of Activists Home 209. As described above, on July 20, 2005, local Ugandan authorities
unlawfully forced their way into the home of Victor Mukasa, a transgender activist and founding member of SEXUAL MINORITIES UGANDA. 210. Mukasa was not present at the residence when authorities arrived, but they
arrested his guest Yvonne Oyo and seized a number of documents and hard copy and electronic files. 211. Oyo was then taken to the police station where she was forced to urinate
on herself and then to strip naked in front of the male authorities to prove her sex. She was then assaulted when they touched and fondled her breasts. Eventually, Oyo was released the same day and no charges were ever filed against either Mukasa or Oyo. 212. The raid of Mukasas home took place only two weeks after an article ran
in the July 6, 2005 edition of the state-owned newspaper, New Vision, urging that [t]he police should visit the holes [sic] mentioned in the press, spy on the perverts, arrest and prosecute them. Relevant government departments must outlaw or restrict websites,
50
magazines, newspapers and television channels promoting immorality -- including homosexuality, lesbianism, pornography, etc. 213. Plaintiff was directly harmed by the blatant violation of the rights of
Mukasa, a founder and staff member of Sexual Minorities Uganda, and Oyo. Plaintiff was additionally harmed in that it was diverted from its work and was forced to assist in seeking redress and accountability for the violations and find ways of addressing the government harassment in the meantime. 214. As the court case set the stage for the intensification of the war against the
LGBTI community previously declared by SSEMPA, LANGA, LIVELY and BUTURO, leading to the emergency Anti-Gay Conference hastily organized by LANGA to develop strategies for ensuring that LGBTI persons would not be able to assert such basic rights, Plaintiff has been additionally harmed and impaired in its ability to carry out its purpose to advocate on behalf of LGBTI people in Uganda, in having to devote substantial time and resources to addressing the resulting and continuing crisis arising out of the conspirators' efforts to ensure LGBTI persons would not be beneficiaries along with everyone else of basic human rights. Arbitrary Interference with Privacy, and Attacks Upon Honor and Reputation 215. The combination of anti-gay forces within and outside government have
created a culture of impunity upon which different media representatives have been able to capitalize. 216. Frequent and sensationalistic outings of LGBTI persons as well as lurid
and sensationalistic stories about LGBTI rights activists, along with photos and information about their residences, have contributed to the climate. The outing tactic 51
by newspapers has helped to escalate exponentially the degradation, intimidation and fear that SSEMPAs outings had initiated months earlier. 217. The Uganda tabloid, the Red Pepper, has continuously run stories that
signal alarm about the supposed dangers posed by LGBTI people to Uganda: a) In 2007, after Martin SSEMPA posted the names, photos and contact information of LGBTI activists, the Red Pepper followed suit in the September 9, 2007 issue with a cover stating Homo Terror! We Name and Shame the Top Gays in the City. b) On April 19, 2009, ten days before the first draft of the AntiHomosexuality Bill was introduced, the cover of the Red Pepper claimed TOP HOMOS IN UGANDA NAMED. c) On April 26, 2009, the cover of the Red Pepper declared MORE HOMOS IN UGANDA NAMED. In this issue, the tabloid included coverage of Stephen LANGAS press conference where he supposedly outed a rival catholic priest. d) On April 27, 2009, the cover headline was: HOMOS WANT TO KILL ME: Sodomy Whistle-Blower Gets Death Threats, Wants To Flee Country. This issue also covered another press conference organized by LANGA. e) On June 18, 2009, the Red Pepper ran a story entitled Homos Invade Schools. 218. As described above, in October 2010, a new Ugandan tabloid associated
with SSEMPA, the Rolling Stone, was published. It contained the most explicit call to
52
violence that had been made in a newspaper to that point, including a call to HANG THEM next to a picture of SEXUAL MINORITIES UGANDA Advocacy Director David Kato. The paper published the names, identifying information and photos of LGBTI rights activists, including Pepe Onziema, another SEXUAL MINORITIES UGANDA staff member, and Kasha Jacqueline Nabagasera, director of Freedom and Roam. 219. Below the headlines, were sub-headlines that stated We Shall Recruit
1000,000 [sic] Innocent Kids by 2012 Homos and Parents Now Face Heart-breaks As Homos Raid Schools. The centerfold of the tabloid contained the large headline: HANG THEM; THEY ARE AFTER OUR KIDS!! 220. Kato, Onziema and Nabagasera and others named in the tabloid received
death threats and harassment subsequent to the release. 221. In January 2011, the High Court issued a permanent injunction preventing
the newspaper from identifying LGBTI persons and ordering the tabloid to pay damages to the plaintiffs. Kato, Onziema and Nabagasera continued to receive death threats. 222. 223. Kato was killed in his home, just over one year ago, on January 26, 2011. Plaintiff SEXUAL MINORITIES UGANDA has been directly harmed in
that its staff have been publicly identified and their contact details made public, have been threatened, harassed and assaulted and at times have had to re-locate and/or go into hiding. 224. Plaintiff has had to seek out and obtain at various times the services of
security personnel and take additional security measures for its premises, and at times has had to relocate its offices or operations, as have its member organizations. All of which
53
has served to impair and harm Plaintiff in its ability to carry its purpose to advocate on behalf of LGBTI people in Uganda. 225. Plaintiff has additionally suffered harm to its standing and reputation in
the community. Invidious Discrimination 226. The combination of legal proscriptions against and criminalization of
homosexuality, along with discriminatory policies and practices relating to government services, media outings and statements and policies of government officials and their non-governmental counterparts have served to create a climate of hostility and prejudice against LGBTI persons in Uganda, that contributes to and reinforces discrimination by private actors in housing, employment, health and education. 227. SEXUAL MINORITIES UGANDA has also had to devote a substantial
amount of time and resources to assisting LGBTI persons who have been arbitrarily arrested and harassed and/or mistreated by the police, including responding to urgent calls about arrests or harassment and arranging for legal representation and advocating on their behalf. 228. SEXUAL MINORITIES UGANDA has also been harmed and impaired in
its mission as it has expended substantial time and resources in helping LGBTI persons to find safe places for them to reside in emergent situations, and also in assisting when LGBTI persons have been forcibly evicted from their homes by landlords who suspect them of being homosexual, as well as assisting those persons who have fled the persecution and seek asylum in other countries.
54
GENERAL ALLEGATIONS COMMON TO ALL COUNTS 229. Plaintiff re-alleges and incorporates by reference the allegations set forth
in paragraphs 1 through 228 of this Complaint as if the same were fully set forth herein. 230. Plaintiff, its member organizations, and their staff members suffered
severe deprivations of fundamental rights, including the rights to: 231. 232. equality and non-discrimination; freedom of expression, association, assembly, and the press; to be free from arbitrary arrest and detention; to be free from torture, and other cruel, inhuman and degrading treatment; the right to respect for human dignity; the right to privacy of the person and home; to be free from attacks upon ones honor and reputation; These deprivations of Plaintiffs fundamental rights were severe. Plaintiff, its member organizations, and staff were deprived of these rights
on the basis of gender and/or sexual orientation and gender identity. 233. 234. The actions and/or omissions of Defendant were intentional. The actions and/or omissions of Defendant were committed as part of a
widespread or systematic attack against a civilian population and were committed with knowledge of the attack. 235. The conduct alleged violates customary international law and is actionable
under the Alien Tort Statute. FIRST CLAIM FOR RELIEF Crime Against Humanity of Persecution: Individual Responsibility
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236.
Plaintiff re-alleges and incorporates by reference the allegations set forth
in paragraphs 1 through 235 of this Complaint as if the same were fully set forth herein. 237. Defendant is liable for the aforementioned severe deprivation of Plaintiffs
fundamental rights on the basis of gender and/or sexual orientation and gender identity in that he committed, solicited, and/or induced the commission or attempted commission of the crime of persecution. 238. Defendant is further liable for the aforementioned severe deprivation of
Plaintiffs fundamental rights on the basis of gender and/or sexual orientation and gender identity in that, for purposes of facilitating the commission or attempted commission of the crime of persecution, he aided, abetted or otherwise assisted in the commission or attempted commission of the crime, including by providing the means for its commission. 239. As a result of Defendants actions and/or omissions, Plaintiff, its member
organizations, and staff members have suffered damages as a result in an amount to be determined at trial. SECOND CLAIM FOR RELIEF Crime Against Humanity of Persecution: Joint Criminal Enterprise 240. Plaintiff re-alleges and incorporates by reference the allegations set forth
in paragraphs 1 through 239 of this Complaint as if the same were fully set forth herein. 241. Defendant is liable for the aforementioned severe deprivation of
fundamental rights on the basis of gender and/or sexual orientation and gender identity in that he contributed to the commission or attempted commission of the crime of persecution by a group of persons acting with a common purpose, including Stephen LANGA, Martin SSEMPA, James BUTURO and David BAHATI.
56
242.
Defendants contributions to the joint criminal enterprise were intentional
and made with the aim of furthering the criminal activity or criminal purpose of the group comprised of LANGA, SSEMPA, BUTURO and BAHATI. 243. The criminal activity or criminal purpose of the group of persons acting as
alleged herein involved the commission of the crime of persecution, i.e., the intentional and severe deprivation of Plaintiffs fundamental rights, contrary to international law, by reason of the identity of the group or collectivity. 244. Defendants contribution to the joint criminal enterprise was made in the
knowledge of the intention of the group to commit the crime of persecution, i.e., to intentionally and severely deprive the group or collectivity of their fundamental rights on the basis of their gender and/or sexual orientation and gender identity. 245. As a result of Defendants actions and/or omissions, Plaintiff, its member
organizations, and staff persons have suffered damages as a result in an amount to be determined at trial. THIRD CLAIM FOR RELIEF Crime Against Humanity of Persecution: Conspiracy 246. Plaintiff re-alleges and incorporates by reference the allegations set forth
in paragraphs 1 through 245 of this Complaint as if the same were fully set forth herein. 247. Defendant is liable for the severe deprivation of fundamental rights on the
basis of gender and/or sexual orientation and gender identity in that he conspired with others to commit the unlawful act of persecution. 248. The Defendant entered into an unlawful agreement with LANGA,
SSEMPA, BUTURO and BAHATI knowing that the goal of the conspiracy was to
57
severely deprive persons of fundamental rights on the basis of their gender and/or sexual orientation and gender identity and intended to help accomplish that end. 249. Defendant and/or his co-conspirators LANGA, SSEMPA, BUTURO and
BAHATI made overt acts in furtherance of the agreement or conspiracy and caused the deprivation of Plaintiffs fundamental rights alleged herein. 250. As a result of Defendants actions and/or omissions, Plaintiff, its member
organizations, and staff persons have suffered damages as a result in an amount to be determined at trial. FOURTH CLAIM FOR RELIEF Civil Conspiracy 251. Plaintiff re-alleges and incorporates by reference the allegations set forth
in paragraphs 1 through 250 of this Complaint as if the same were fully set forth herein. 252. LIVELY and his co-conspirators LANGA, SSEMPA, BUTURO and
BAHATI, acted in unison and, in doing so, exercised a peculiar power of coercion over the Plaintiff that they would not have had if they had acted alone. 253. As described above, LIVELY and his co-conspirators combined to
accomplish an unlawful purpose or other purpose by unlawful means. 254. The actions of LIVELY and his co-conspirators described above have
been willful and/or knowing at all times relevant hereto. 255. The Defendants actions along with those of his co-conspirators constitute
a civil conspiracy which employed unlawful conduct or combined to accomplish an unlawful purpose which caused damage to Plaintiff. 256. As a direct and proximate result of Defendants actions and/or omissions
in concert with his co-conspirators, Plaintiff, its member organizations and staff persons 58
have suffered, and continue to suffer, damages as a result in an amount to be determined at trial. FIFTH CLAIM FOR RELIEF Negligence 257. Plaintiff re-alleges and incorporates by reference the allegations set forth
in paragraphs 1 through 256 of this Complaint as if the same were fully set forth herein. 258. Defendant, through his aforementioned acts and omissions, created a
dangerous situation for Plaintiff, its member organizations and staff members in creating a virulently hostile environment and in consulting and working with his co-conspirators to severely deprive Plaintiff, and the LGBTI community in Uganda, of basic fundamental rights. 259. Defendant owed a duty to Plaintiff to prevent harm from the dangerous
situation he created, whether he created the situation intentionally or negligently. 260. Defendant breached the duty he owed to Plaintiff in failing to prevent
harm resulting from the situation he created. 261. As a direct and proximate result of Defendants actions and/or omissions
in concert with his co-conspirators, Plaintiff, its member organizations and staff persons have suffered, and continue to suffer, severe harm. 262. Defendants conduct constitutes negligence and Plaintiff is entitled to
compensatory and punitive damages in amounts to be ascertained at trial. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for judgment against Defendant as follows: a. For compensatory damages in an amount to be proven at trial; b. For punitive and exemplary damages in an amount to be proven at trial; 59
c. For reasonable attorneys fees and costs of suit; d. For a declaratory judgment holding that Defendants conduct was in violation of the law of nations; e. For injunctive relief enjoining the Defendant from undertaking further actions, and from plotting and conspiring with others, to persecute Plaintiff and the LGBTI community in Uganda on the basis of their sexual orientation and gender identity, and strip away and/or severely deprive Plaintiff and LGBTI community in Uganda of fundamental rights, including the rights to freedom of expression, association and assembly, to be free from torture and other cruel, inhuman and degrading treatment, and arbitrary arrest and detention; f. For all such other and further relief as the Court may deem just and proper. A jury trial is demanded on all issues.
Dated: July 13, 2012
Respectfully submitted,
Luke Ryan (Bar No. 664999) 100 Main Street, Third Floor Northampton, MA 01060 Tel. (413) 586-4800 Fax (413) 582-6419 lryan@strhlaw.com Attorneys for Plaintiff
/s/Pamela Spees Pamela C. Spees Admitted Pro Hac Vice Baher Azmy Admitted Pro Hac Vice Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 212-614-6431 - Phone 212-614-6499 - Fax pspees@ccrjustice.org
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CERT IFICATE OF SERVICE I HEREBY CERTIFY that the foregoing was filed electronically, that it will be served electronically upon all parties of record who are registered CM/ECF participants via the NEF, and that paper copies will be sent to any parties indicated on the NEF as non registered participants on July 13, 2012.
/s/Pamela Spees Pamela Spees Counsel for Plaintiff
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Case: 13-2503 Case Document: 3:12-cv-30051-MAP 00116621208 Document Page: 6430 Date FiledFiled: 08/09/12 12/06/2013 Page 1 of Entry 2 ID: 5785627
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS SPRINGFIELD DIVISION SEXUAL MINORITIES UGANDA, Plaintiff, v. SCOTT LIVELY, Defendant. : : : : : : : : : CIVIL ACTION 3:12-CV-30051-MAP JUDGE MICHAEL A. PONSOR
ORAL ARGUMENT REQUESTED
DEFENDANT SCOTT LIVELYS MOTION TO DISMISS PLAINTIFFS FIRST AMENDED COMPLAINT Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), Defendant Scott Lively, individually and as President of Abiding Truth Ministries, respectfully moves the Court to dismiss, with prejudice, the First Amended Complaint (dkt. 27) filed by Plaintiff, Sexual Minorities Uganda, on the grounds that Plaintiff lacks standing, the Court lacks subject-matter jurisdiction, and the First Amended Complaint fails to state a claim upon which relief can be granted. A memorandum of law in support of this Motion, and a Motion to Exceed the Page Limitation, are filed concurrently herewith. Respectfully submitted, Philip D. Moran (MA Bar # 353920) 265 Essex Street, Suite 202 Salem, Massachusetts 01970 Tel: (978) 745-6085 Fax: (978) 741-2572 Email: philipmoranesq@aol.com /s/ Horatio G. Mihet________________ Mathew D. Staver Admitted Pro Hac Vice Horatio G. Mihet Admitted Pro Hac Vice LIBERTY COUNSEL P.O. Box 540774 Orlando, FL 32854-0774 800-671-1776 Telephone 407-875-0770 Facsimile court@lc.org
Attorneys for Defendant Scott Lively
Case: 13-2503 Case Document: 3:12-cv-30051-MAP 00116621208 Document Page: 6530 Date FiledFiled: 08/09/12 12/06/2013 Page 2 of Entry 2 ID: 5785627
REQUEST FOR ORAL ARGUMENT Pursuant to L.R. D. Mass. 7.1(d), Defendant Scott Lively respectfully requests oral argument on this Motion, on the grounds that this case is of great public importance and oral argument will assist the Court in understanding, evaluating and deciding the wide array of complex questions of constitutional and international law raised herein.
/s/ Horatio G. Mihet________________ Horatio G. Mihet Attorney for Defendant Scott Lively
CERTIFICATE OF CONFERRAL Pursuant to L.R. D. Mass. 7.1(a)(2), I certify that I conferred in good faith with counsel for Plaintiff prior to filing this motion, but was unable to resolve or narrow the issues raised herein. /s/ Horatio G. Mihet________________ Horatio G. Mihet Attorney for Defendant Scott Lively
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was filed electronically with the Court on August 9, 2012. Service will be effectuated by the Courts electronic notification system upon all counsel or parties of record. /s/ Horatio G. Mihet________________ Horatio G. Mihet Attorney for Defendant Scott Lively
Case: 13-2503 Case Document: 3:12-cv-30051-MAP 00116621208Document Page: 66 33 Filed Date08/10/12 Filed: 12/06/2013 Page 1 of 109 Entry ID: 5785627
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS SPRINGFIELD DIVISION SEXUAL MINORITIES UGANDA, Plaintiff, v. SCOTT LIVELY, Defendant. : : : : : : : : : CIVIL ACTION 3:12-CV-30051-MAP JUDGE MICHAEL A. PONSOR ORAL ARGUMENT REQUESTED LEAVE TO FILE GRANTED 8/10/2012
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT SCOTT LIVELYS MOTION TO DISMISS PLAINTIFFS FIRST AMENDED COMPLAINT
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BACKGROUND FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. B. C. SMUG AND ITS CLAIMS. . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . THE PERSECUTION ALLEGED BY SMUG. . . . . . . . . . . . . . . . . . . . . . . . . . THE ALLEGED CONSPIRACY BY MR. LIVELY. . . . . . . . . . . . . . . . . . .
1 2 2 4 8 13 15 15
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . LAW AND ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. II. THE STANDARD FOR DISMISSAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SMUG HAS FAILED TO STATE A CLAIM BECAUSE MR. LIVELYS SPEECH AND CONDUCT ARE PROTECTED BY THE FIRST AMENDMENT . . . . . . . . A. AS A UNITED STATES CITIZEN, MR. LIVELY HAS A FUNDAMENTAL RIGHT UNDER THE FIRST AMENDMENT TO ENGAGE IN NONVIOLENT POLITICAL SPEECH ANYWHERE IN THE WORLD . . . . . . . THE FIRST AMENDMENT TRUMPS INTERNATIONAL LAW AND IS NOT SUBSERVIENT TO IT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . MR. LIVELYS NON-VIOLENT POLITICAL SPEECH OR CONDUCT IS PROTECTED BY THE FIRST AMENDMENT . . . . . . . . . . . . . . . . . . . . . . 1. Mr. Livelys Opinions and Non-Violent Political Speech Regarding Homosexuals and Homosexuality are Fully Protected . . . . . . . . . . . . . . SMUG has not Alleged any Actionable Conduct . . . . . . . . . . . . . . . . . .
17
18
B.
19
C.
20
21 23
2. III.
THIS COURT LACKS SUBJECT-MATTER JURISDICTION BECAUSE SMUG HAS NOT ALLEGED CONDUCT IN VIOLATION OF UNIVERSALLY ACCEPTED AND CLEARLY DEFINED INTERNATIONAL LEGAL NORMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. SMUG CANNOT ESTABLISH THAT THE TORT OF PERSECUTION IS UNIVERSALLY ACCEPTED AND CLEARLY DEFINED, BECAUSE THE ROME STATUTE IS A TREATY, NOT A NORM, AND WAS EXPRESSLY REJECTED BY THE UNITED STATES . . . . . . . . . . . . . . . . . . i
27
28
B.
SMUG CANNOT ESTABLISH THAT PROHIBITION OF PERSECUTION BASED ON SEXUAL ORIENTATION AND TRANSGENDER IDENTITY IS UNIVERSALLY ACCEPTED AND CLEARLY DEFINED . . . . . . . . . . . .
29
IV. SMUGS CLAIM FOR PERSECUTION FAILS TO STATE A CAUSE OF ACTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. MR. LIVELYS PROTECTED POLITICAL SPEECH IS NOT PERSECUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SMUG CANNOT STATE A CLAIM FOR PERSECUTION IN ITS OWN RIGHT, BECAUSE IT IS AN ORGANIZATION, NOT AN INDIVIDUAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SMUG HAS FAILED TO PLEAD AN ESSENTIAL ELEMENT OF PERSECUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SMUG CANNOT STATE A CLAIM FOR PERSECUTION BECAUSE MR. LIVELY IS NOT A STATE ACTOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SMUG HAS NOT ALLEGED THAT MR. LIVELY HIMSELF COMMITTED ANY ACTS OF PERSECUTION . . . . . . . . . . . . . . . . . . . . . . .
36
37
B.
40
C.
42
D.
45
E.
48
V.
SMUGS CLAIM FOR AIDING AND ABETTING PERSECUTION FAILS TO STATE A CLAIM BECAUSE PLAINTIFF HAS NOT ALLEGED THE REQUIRED ELEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. SMUG FAILS TO ALLEGE ANY CONDUCT THAT CONSTITUTES AIDING AND ABETTING PERSECUTION . . . . . . . . . . . . . . . . . . . . . . . . . . SMUGS CONCLUSORY ALLEGATIONS FAIL TO PLEAD THE REQUISITE INTENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
49
50
B.
55
VI. SMUGS CLAIM FOR CONSPIRACY TO PERSECUTE FAILS BOTH BECAUSE THE COURT LACKS SUBJECT-MATTER JURISDICTION AND BECAUSE SMUG FAILS TO STATE A CAUSE OF ACTION . . . . . . . . . . . . . . . . . . . . . . . . . . . A. THE COURT DOES NOT HAVE SUBJECT-MATTER JURISDICTION OVER SMUGS CONSPIRACY CLAIM BECAUSE CONSPIRACY LIABILITY IS NOT UNIVERSALLY RECOGNIZED AND CLEARLY DEFINED UNDER INTERNATIONAL LAW . . . . . . . . . . . . . . . . . . . . . . . . SMUGS CLAIM FOR CONSPIRACY TO PERSECUTE FAILS TO STATE A CAUSE OF ACTION BECAUSE SMUG FAILS TO ALLEGE THE REQUISITE MENS REA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
57
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B.
61
ii
VII. SMUGS CLAIM FOR JOINT CRIMINAL ENTERPRISE SHOULD BE DISMISSED FOR LACK OF SUBJECT-MATTER JURISDICTION AND FAILURE TO STATE A CAUSE OF ACTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VIII. SMUGS STATE LAW CLAIMS ARE TIME-BARRED AND FAIL TO STATE COGNIZABLE CLAIMS FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. SMUGS STATE LAW CLAIMS ARE TIME-BARRED . . . . . . . . . . . . . . . . . 1. 2. B. C. SMUGs Civil Conspiracy Claim is Time-Barred . . . . . . . . . . . . . . . . . SMUGs Negligence Claim is Time-Barred . . . . . . . . . . . . . . . . . . . . . .
62
64 64 65 68 69
SMUGS STATE LAW CLAIMS FAIL UNDER UGANDA LAW . . . . . . . . . SMUG FAILS TO STATE A CLAIM FOR CIVIL CONSPIRACY OR NEGLIGENCE UNDER MASSACHUSETTS LAW . . . . . . . . . . . . . . . . . . . .
70 73
IX. SMUG LACKS ASSOCIATIONAL STANDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. SMUG LACKS ASSOCIATIONAL STANDING TO BRING THIS ACTION ON BEHALF OF ITS MEMBERS, EMPLOYEES OR THE LGBTI COMMUNITY BECAUSE ITS TORT CLAIMS REQUIRE INDIVIDUALIZED PARTICIPATION OR PROOF . . . . . . . . . . . . . . . . . . . . . 1. SMUGs Representative-Capacity Claims for Money Damages Are Barred as a Matter of Well-Settled Law . . . . . . . . . . . . . . . . . . . . . . . . . SMUG Lacks Associational Standing to Bring a Representative-Capacity Claim for Declaratory or Injunctive Relief Sounding in Tort, Because the Claim Requires Individualized Participation or Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. b. SMUG Does Not Seek a Purely Legal Ruling . . . . . . . . . . . . . . SMUGs Claims for Declaratory and Injunctive Relief Sound in Tort and Necessarily Require Individualized Proof . . . . . . . . . .
73
74
2.
77 78
79
B.
SMUG LACKS ASSOCIATIONAL STANDING TO BRING CLAIMS FOR DECLARATORY AND INJUNCTIVE RELIEF BECAUSE THEY ARE NOT REDRESSABLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SMUG LACKS ASSOCIATIONAL STANDING BECAUSE IT CANNOT PLEAD SUFFICIENT CAUSATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SMUG LACKS ASSOCIATIONAL STANDING BECAUSE IT HAS NOT ALLEGED ASSOCIATIONAL AUTHORITY . . . . . . . . . . . . . . . . . . . . . . . . . iii
82
C.
85
D.
88
X.
SMUG LACKS STANDING TO BRING THIS ACTION ON ITS OWN BEHALF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
89
XI. THIS COURT LACKS SUBJECT-MATTER JURISDICTION OVER SMUGS PERSECUTION CLAIMS BECAUSE THE ALIEN TORT STATUTE DOES NOT REACH EXTRATERRITORIAL CONDUCT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. THE SUPREME COURT, THE FIRST CIRCUIT AND THIS DISTRICT ALL RECOGNIZE AND ENFORCE THE LONGSTANDING AND STRONG PRESUMPTION AGAINST EXTRATERRITORIAL APPLICATION OF FEDERAL STATUTES . . . . . . . . . . . . . . . . . . . . . . . . . . NOTHING IN THE TEXT, CONTEXT, STRUCTURE OR LEGISLATIVE HISTORY OF THE ALIEN TORT STATUTE AFFIRMATIVELY AND CLEARLY INDICATES THAT CONGRESS INTENDED EXTRATERRITORIAL APPLICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. The Text of the Alien Tort Statute Does Not Affirmatively and Clearly Evidence Extraterritorial Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Context of the Alien Tort Statute Does Not Affirmatively and Clearly Evidence Extraterritorial Intent . . . . . . . . . . . . . . . . . . . . . . . . . The Structure of the Alien Tort Statute Does Not Affirmatively and Clearly Evidence Extraterritorial Intent . . . . . . . . . . . . . . . . . . . . . . . . . The Legislative History of the Alien Tort Statute Does Not Affirmatively and Clearly Evidence Extraterritorial Intent . . . . . . . . . . .
91
92
B.
93
94
2.
95
3.
98
4.
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C.
THIS COURT SHOULD NOT FOLLOW THE DECISIONS OF OTHER COURTS THAT HAVE OVERLOOKED OR DISREGARDED THE STRONG PRESUMPTION AGAINST EXTRATERRITORIALITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
99
D.
SMUG DOES NOT ALLEGE ANY DOMESTIC ACTIONABLE CONDUCT BY MR. LIVELY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 104 104
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
iv
INTRODUCTION [T]he [Alien Tort Statute] is not a blanket delegation of lawmaking to the democratically unaccountable international community of custom creators. 1 In this action brought under the Alien Tort Statute, Sexual Minorities Uganda (SMUG), an alien organization, launches a direct assault on the supremacy and portability of the United States Constitution, seeking to render the bedrock protections of the First Amendment subservient to the inchoate and amorphous dictates of international law. SMUG asks this United States Court to punish one of its citizens, Mr. Lively, for crimes against humanity under an international treaty that the United States has expressly rejected. Moreover, what SMUG cavalierly labels as crimes against humanity the most heinous of crimes is actually nothing more than civil, non-violent political discourse in the public square on a subject of great public concern, which occupies the highest rung of First Amendment protections. SMUG does not and cannot allege that Mr. Lively has ever incited anyone to imminent violence. The eight specific acts of persecution that SMUG alleges in its sixty-one (61) page Amended Complaint were, according to SMUGs own allegations, committed solely by other individuals not before this Court. SMUG alleges no plausible connection between Mr. Lively and the actual perpetrators of those alleged violent acts. While SMUG tries to turn those eight events allegedly perpetrated by other people into a widespread and systematic attack against a civilian population, SMUG does not tell this Court that, according to its own chairman, it has already received justice in Ugandan courts, where SMUG and its constituents have been awarded damages against police, damages against tabloid publications and permanent injunctions against incitements to violence. Those legal victories have caused SMUGs chairman to proclaim publicly that [w]e are no longer afraid of anything.
Flomo v. Firestone Nat. Rubber Co., LLC, 643 F.3d 1013, 1016 (7th Cir. 2011) (emphasis added).
SMUG also does not tell the Court that David Kato the Ugandan homosexual activist whose murder SMUG trumpets in this lawsuit was killed not by an enraged homophobe incited by Mr. Livelys protected speech, but by a homosexual prostitute upset over a failed business transaction. Neither does SMUG tell the Court that the confessed perpetrator of this horrible crime was tried and convicted in Ugandan courts, and is now serving a thirty-year prison sentence. And, finally, SMUG does not tell the Court that, far from inciting violence, Mr. Lively has consistently condemned acts of violence and calls to violence in the strongest possible terms, and has praised the Ugandan courts for imparting justice. SMUGs admitted motive for bringing this lawsuit is that it felt really insulted by Mr. Livelys speech. Its admitted purpose is even more sinister, namely, to make it too costly to exercise protected speech. Rather than clogging up a United States Court with a frivolous lawsuit designed only to shut down peaceful public discourse, SMUG should continue to seek and receive justice in its home country, against individuals who actually perpetrate crimes. SMUG has no cause of action against Mr. Lively. This improper lawsuit should be dismissed. BACKGROUND FACTS A. SMUG AND ITS CLAIMS.
Sexual Minorities Uganda calls itself SMUG. (Dkt. 1, 1). SMUG claims that it is an alien umbrella organization which represents the interests of its constituent member organizations in advocating on behalf of lesbians, homosexuals, bisexuals, transgender and intersex persons. (Amended Complaint, dkt. 27, 1, 18). In response to Mr. Livelys Motion to Dismiss (dkts. 21-22) the original Complaint, SMUG filed an Amended Complaint without leave of Court. (Dkt. 27). However, SMUGs second manifesto suffers from all of the same defects as its first, as well as several new ones, and should be dismissed with prejudice.
SMUG now attempts to state three tort claims against Mr. Lively, a private United States citizen, including: (1) the tort of crime against humanity of persecution (First, Second and Third Claims for Relief) (dkt. 27, 236-250) 2; (2) civil conspiracy (Fourth Claim for Relief) (id. at 251-256); and (3) negligence (Fifth Claim for Relief) (id. at 257-262). SMUG invokes the Courts subject-matter jurisdiction over the persecution claims (Counts I, II and III) through the Alien Tort Statute, 28 U.S.C. 1350. (Dkt. 27, 2-3, 15). SMUG alleges that its claims for civil conspiracy (Count IV) and negligence (Count V) are cognizable under Massachusetts state law (id. at 4), and are subject to diversity and supplemental jurisdiction under 28 U.S.C. 1332 and 1367, respectively. (Id. at 15). The persecution claimed by SMUG is both to itself, and to its staff members, individual members of SMUG and its constituent organizations, and the LGBTI community. (Dkt. 27, 6, 21). SMUG therefore purports to bring this international tort action not only on its own behalf, but also in a representative capacity. (Id.) SMUG seeks primarily money damages, including compensatory damages, punitive and exemplary damages, and reasonable attorneys fees and costs. (Id. at pp. 59-60, Prayer for Relief (a), (b) and (c)). In a fourth Prayer for Relief, SMUG also purports to seek a declaratory judgment holding that [Mr. Livelys] conduct was in violation of the law of nations. (Id. at Prayer for Relief (d)). Although it omitted injunctive relief entirely from its original Complaint (dkt. 1, p. 47), SMUG now requests, as an afterthought, injunctive relief enjoining [Mr. Lively] from persecut[ing] [SMUG] and the LGBTI community in Uganda. (Dkt. 27, p. 60, Prayer for Relief (e)).
Although SMUG purports to assert three separate Claims for Relief for persecution, they are different facets of the same underlying tort, specifically: Persecution: Individual Responsibility (Count I); Persecution: Joint Criminal Enterprise (Count II); and Persecution: Conspiracy (Count III). (Dkt. 27, 236-250) (emphasis added).
B.
THE PERSECUTION ALLEGED BY SMUG.
SMUG claims that it and its individual employees and members were persecuted on the basis of their gender and/or sexual orientation and gender identity. (Dkt. 27, 1). SMUG alleges eight instances of alleged persecution, none of which were perpetrated by Mr. Lively, and all of which took place entirely outside the sovereign borders of the United States, specifically in Uganda. (Id. at 165-228). The eight alleged incidents of persecution are: (1) A June 2012 raid of a skills-building workshop for [homosexual] rights
advocates outside Kampala, Uganda, allegedly perpetrated by Ugandan police and the Ugandan Minister of Ethics and Integrity Simon Lokodo, during which a handful of people were detained between one and three hours. (Id. at 165-175) (emphasis added). Mr. Livelys name is not mentioned at all in connection with this incident. (Id.) Neither the Ugandan police, nor Minister Lokodo are alleged to be among the four (4) co-conspirators of Mr. Lively. (Id. at 43-45, 94-164). 3 Thus, SMUG pleads no connection between Mr. Lively and the Ugandan police, Minister Lokodo or the June 2012 raid. (Id.) (2) A February 2012 raid of a conference on LGBTI issues in Kampala, Uganda,
also allegedly perpetrated by the police and Minister Lokodo, during which conference materials [were] seized, and as a result of which the conference organizer had to flee the hotel to avoid the unlawful arrest and feared for her safety. (Id. at 176-185) (emphasis added). Once again, Mr. Livelys name is wholly absent from this incident. (Id.) And neither of the two alleged bad actors the police or Minister Lokodo are alleged to be co-conspirators of Mr. Lively. (Id. at 43-45, 94-164).
SMUG alleges that Mr. Lively entered into an unlawful agreement with others to persecute homosexuals in Uganda, and identifies four (4) alleged co-conspirators: Stephen Langa, Martin Ssempa, James Buturo and David Bahiti, all of whom are citizens of Uganda. (Dkt. 27, 43-45, 94-164).
Case: 13-2503Case Document: 3:12-cv-30051-MAP 00116621208 Document Page: 75 33 Filed Date 08/10/12 Filed: 12/06/2013 Page 10 of 109 Entry ID: 5785627
(3)
A June 2008 arrest of three LGBTI rights activists, in Kampala, Uganda,
allegedly perpetrated by Ugandan police, which allegedly detained the activists for two days, and during which one activist was forcibly unclothed and touched by a Ugandan officer. (Id. at 186-193) (emphasis added). Mr. Livelys name is not mentioned here either (id.), and neither the police in general, nor the unidentified police officer who allegedly touched the activist, are alleged to be co-conspirators of Mr. Lively. (Id. at 43-45, 94-164). (4) A May 2012 statement by Minister Lokodo to a news agency that he intends
to investigate the clinic that [SMUG] and a member organization undertook to open in Kampala to provide testing, counseling and treatment for HIV/AIDS and other sexually transmitted infections. (Id. at 194-198) (emphasis added). SMUG does not mention Mr. Livelys name in connection with this incident. (Id.) Minister Lokodo is not one of the four alleged co-conspirators of Mr. Lively. (Id. at 43-45, 94-164). Moreover, SMUG does not allege that the promised investigation ever took place, and the source document it relies upon refutes its allegations of discrimination in healthcare. (Id.) 4 (5) An August-September 2007 crack-down on media [and] advocacy in Uganda,
allegedly perpetrated by Deputy Attorney General Fred Ruhindi, the Ugandan Broadcasting Council and the Red Pepper Ugandan tabloid, which resulted in (a) the suspension of a radio station manager for interviewing a lesbian activist, and (b) the publication
4
The same source document on which SMUG relies to substantiate the supposed threats to criminalize and shut down health services for LGBTI persons quotes Ugandas Minister for Health as stating, We dont discriminate and marginalize when it comes to offering health services. When people come for treatment at our health facilities, we cant ask for their sexual orientation. Uganda: New LGBTI Clinic Faces Fierce Government Criticism, IRN Plus News, July 11, 2012 (emphasis added) (cited by SMUG at dkt. 27, 197 n.79) (available at http://www.irinnews.org/printreport.aspx?reportid=95844, last visited August 6, 2012). The document also quotes the Director General of the Uganda AIDS Commission: I have been a doctor for over 40 years. I have never heard where a patient has been asked about his or her sexual orientation. Id. (emphasis added). And, SMUGs own document quotes another prominent doctor as stating: We swear an oath. It instructs us to treat patients without harm and injustice, so we cant discriminate against anybody, based on sexual orientation. We treat all people without asking their orientation. Id. (emphasis added).
of names and photos of LGBTI activists in a tabloid. (Id. at 199-208). Mr. Lively is not claimed to have participated in the crack-down. (Id.) None of the three Ugandan actors Deputy A.G. Ruhindi, the Broadcasting Council or the Red Pepper are alleged to be coconspirators of Mr. Lively. (Id. at 43-45, 94-164). While SMUG mentions the names of two of Mr. Livelys alleged co-conspirators in connection with this incident James Buturo and Martin Ssempa it does not claim that they actually perpetrated the crack-down. (Id. at 201204). SMUG claims only that Mr. Ssempa, a private Uganda citizen, publicly lobbied and advocated for stronger government actions against [homosexuals] (id. at 203), and that Mr. Buturo, then a government official, stated that the government was considering criminalization of the promotion of homosexuality. (Id. at 201) (emphasis added). (6) A July 2005 raid of the home of Victor Mukasa, a transgender activist and
founding member of [SMUG], allegedly perpetrated by local Ugandan authorities, during which Mukasas house guest, Yvonne Oyo, was arrested by the authorities and taken to the police station, where she was allegedly forced to strip naked, touched and fondled and then released the same day. (Id. at 209-214). SMUG does not claim that Mr. Lively or any of his four alleged co-conspirators perpetrated or requested the raid. (Id.) The unidentified local Ugandan authorities are not among the alleged co-conspirators or Mr. Lively. (Id. at 43-45, 94-164). Moreover, SMUG advises elsewhere in its Amended Complaint that Mukasa and Oyo successfully sued the police in Ugandan courts, and were awarded damages by the High Court of Uganda, which reaffirmed their rights under the Ugandan Constitution and held that gays and lesbianslike everyone elsecould challenge the unlawful conduct of the authorities [and] enjoyed the basic protections of law. (Id. at 34) (emphasis added).
(7)
[F]requent and sensationalistic outings of LGBTI persons in Uganda by two
Ugandan tabloids, which allegedly ran articles in 2007 and 2009 seeking to out and shame homosexuals, and issuing explicit call[s] to violence. (Id. at 215-225). SMUG does not claim that Mr. Lively himself outed anybody, or called for violence against anyone, and does not even mention Mr. Livelys name. (Id.) Neither tabloid is alleged to be a co-conspirator of Mr. Lively. (Id. at 43-45, 94-164). SMUG alleges that three individuals outed by these publications received death threats, and that one of them, David Kato, was killed in his home. (Id. at 220, 222). Having been called to task for omitting it from its original Complaint (e.g., dkt. 22, p. 9), SMUG now reluctantly acknowledges that it successfully sued the tabloids in Ugandan courts, and that [i]n January 2011, the High Court issued a permanent injunction preventing the newspaper from identifying LGBTI persons and ordering the tabloid to pay damages. (Dkt. 27, 221) (emphasis added). As for David Katos murder, a homosexual prostitute has confessed to bludgeoning him with a hammer, not because Mr. Kato was outed as a homosexual, but because he reneged on a sex-for-money transaction, and the perpetrator is now serving a thirty-year sentence in Uganda for this horrific crime. Incredibly, SMUG still omits this critical fact, even though its own source documents 5, the mainstream media 6 and homosexual rights publications 7 have widely acknowledged it. Moreover,
Murdering Uganda, Defend the Family International, Feb. 5, 2011 (cited by SMUG at dkt. 27, 92 & n.39) (available at http://www.defendthefamily.com/pfrc/newsarchives.php?id=5422609, last visited August 7, 2012) (the killer has now been caught and confessed that he was a live-in male prostitute who murdered Kato for failing to pay him as promised). The Court may consider this information on this Motion to Dismiss, because it is found in a source document referenced and relied upon by SMUG in its Amended Complaint. (See section I, pp. 15-16, infra).
6
Male prostitute killed Uganda gay activist: police, Agence France-Presse (AFP), February 3, 2011 (reporting that A Ugandan gay rights activist was killed after reneging on an agreement to pay for sex, and that According to the suspect ... he negotiated with the deceased to be paid money as he was being used as a sexual partner, but that the promise was never fulfilled) (emphasis added) (available http://www.google.com/hostednews/afp/article/ALeqM5ihVH6Ahnbnhdo3CqrEDT3mCBknKg?docId=C NG.9057dbf4f3db02f92ea39216b26eb623.8a1, last visited June 18, 2012).
while SMUG selectively quotes Mr. Livelys website numerous times in its Amended Complaint (e.g., dkt. 27, 23, 58, 59, 66, 92 & n.5, n.16, n.23, n.39), it leaves out his strongest condemnation of Mr. Katos murder: Ugandan homosexual activist David Cato (sic) was recently beaten to death with a hammer in his home. It was a terrible crime deserving of our strongest condemnation. I extend my sincere condolences to his family and friends. 8 (8) [D]iscrimination by private actors in housing, employment, health and
education, allegedly occurring in Uganda as a result of legal proscriptions criminalization of homosexuality, and discriminatory policies and practices. (Dkt. 27, 226-228) (emphasis added). Once again, neither Mr. Livelys name nor the names of any of his four alleged coconspirators are mentioned in connection with the alleged discrimination. (Id.) C. THE ALLEGED CONSPIRACY BY MR. LIVELY.
As detailed above, SMUG does not allege that any of the eight alleged acts of persecution were in fact perpetrated by Mr. Lively. (Dkt. 27, 165-228). SMUG does not allege that Mr. Lively himself participated in any way in any of the eight incidents, or that he was even in Uganda at the time they occurred. (Id.) SMUG also does not allege that Mr. Lively expressly solicited or encouraged any of the actors to do what they did. (Id.) SMUG does not allege, for example, that Mr. Lively asked the Ugandan police to conduct the alleged 2012 raids, nor the alleged 2008 arrests, nor the alleged 2005 home invasion. (Id.) SMUG does not allege that Mr. Lively solicited or encouraged the Ugandan tabloids to out anybody. (Id.) And SMUG does
Killer of David Kato receives 30 year prison sentence, Pink News, November 10, 2011 (available at http://www.pinknews.co.uk/2011/11/10/killer-of-david-kato-receives-30-year-prison-sentence/, last visited August 7, 2012) (David Kato[s killer] has been sentenced to 30 years in prison after he pleaded guilty to the murder and claimed Mr. Kato agreed to pay him for sex, but refused to hand over any money after the act) (emphasis added). Pink News calls itself Europes largest gay news service. (Id.) Dr. Lively Comments on Uganda Murder, Defend the Family International, January 28, 2011 (available at http://www.defendthefamily.com/pfrc/newsarchives.php?id=5842336, last visited June 20, 2012) (emphasis added).
8
not allege that Mr. Lively knew or ever communicated with the homosexual prostitute who admittedly killed David Kato, much less that Mr. Lively solicited or encouraged the murder. (Id.) Indeed, in the thirteen pages of the Amended Complaint that detail the eight alleged acts of persecution SMUG mentions Mr. Livelys name only twice, in passing, and does not allege a single specific act by Mr. Lively. (Id.) Nevertheless, SMUG seeks to hold Mr. Lively, and Mr. Lively alone, liable for these eight alleged crimes against humanity, not because of anything Mr. Lively has done, but because of what Mr. Lively has said about homosexuality and the homosexual rights movement, either in various books and writings, or during visits to Uganda in 2002 and 2009. SMUG claims early in the Amended Complaint that it is not seeking to punish Mr. Livelys anti-gay speech or writings, and seeks to challenge LIVELYs conduct through his involvement in a conspiracy to [persecute] people on the basis of their identity. (Id. at 11) (capitalization in original; bold emphasis added). However, in the section of the Amended Complaint where it purports to set out Mr. Livelys alleged involvement in the so-called Conspiracy/Joint Criminal Enterprise to Commit Persecution (id. at 46-93), SMUG alleges only speech by Mr. Lively, including that: he espoused and promoted his theories [and] strategies (id. at 47); he spoke at length (id. at 48); he addressed students and led a [church] service (id., at 51); he offered a number of practical suggestions to members of the Kampala City Council (id. at 52); he spok[e] to others about [his] book and [made] it available in Uganda (id. at 54); and he published a handbook in which he describes the gay movement. (Id. at 58-59) (emphasis added throughout). The crux of the so-called conspiracy, according to SMUG, is that Mr. Lively espoused and promoted two principal views about homosexuals or homosexuality to various government members and private citizens in Uganda, through his books and writings and orally at various 9
meetings and conferences he held in Uganda in 2002 and early 2009. (Id. at 65-93). Those two alleged opinions are: (1) that advocacy undertaken by [homosexual] rights advocates should be criminalized; and (2) that homosexual identity leads to sexual violence against children. (Id. at 65-74). 9 SMUG does not like or agree with either of these two alleged opinions, and thinks they are utterly baseless and without merit. (Id. at 68, 74). SMUG alleges that four co-conspirators [i.e., two private citizens (Stephen Langa and Martin Ssempa), one government official (James Buturo), and one member of the Ugandan Parliament (David Bahati)], were inspired by Mr. Livelys opinions, and made overt acts in conformity with those opinions. (Id. at 7-8, 249) Critically, however, these so-called overt acts are not the same acts alleged by SMUG within the eight incidents of persecution. (Id. at 165-228). As with Mr. Lively, SMUG does not allege that any of the eight incidents of persecution were perpetrated by any of the four alleged co-conspirators. (Id.) Instead, the overt acts alleged by SMUG consist of political speech and public advocacy on an issue of public importance in Uganda. (Id. at 94-164). Among such political speech, SMUGs chief complaint is the introduction of a bill in the Ugandan Parliament that would criminalize advocacy on homosexual issues and impose the death penalty for certain aggravated offenses involving homosexuality. (Id. at 9, 68). That bill has languished in the Ugandan Parliament for over three years, and was never enacted into law. (Id. at p. 17, p. 52). Indeed, the same Associated Press news report referenced and relied upon by SMUG in its Amended Complaint reveals based upon an interview with SMUGs chairman that activists believe the controversial law
Mr. Lively recognizes that, for purposes of this Motion to Dismiss, the Court must accept SMUGs factual allegations as true. Therefore, Mr. Lively will not, for present purposes only, endeavor to show just how untruthful and deceptive are SMUGs mischaracterizations of his opinions.
10
will never pass, [but] they are pursuing [this] legal action they expect will make it too costly for people to be hostile to gays. 10 SMUG also alleges that [b]y repeatedly characterizing the LGBTI community as rapists and murderers and child abusers not to mention possessing the genocidal tendencies of the Nazis and Rwandan conspirators LIVELY deliberately invited, induced and encouraged a proportional response from Ugandans i.e., severe repression, arrest and certainly even violence. (Dkt. 27, 93). Essentially, according to SMUG, Mr. Lively is responsible for the eight crimes against humanity because his opinions and rhetoric served to create a climate of hostility and prejudice against LGBTI persons in Uganda in which those acts of persecution could take place. (Id. at 226). Importantly, in its sixty-one (61) page Amended Complaint, SMUG does not identify a single specific quote or statement from Mr. Lively which it claims to have been a call to violence, let alone imminent violence, against anyone. SMUG does identify various statements from other third parties whom SMUG has not sued, and claims that these statements are calls for violence, including we must exterminate homosexuals, (id. at 8); and HANG THEM. (Id. 218) (capitalization in original). But SMUG does not attribute these alleged incitements to Mr. Lively in any way. (Id.) As noted above, SMUG has now come around to admitting that it successfully sued the true inciters to violence in Ugandan courts, where SMUG obtained both a permanent injunction and damages. (Id. at 221). According to SMUGs own source document, the media regarded this
Ugandas Gays See Progress in Public Opinion War, Associated Press, March 20, 2012 (emphasis added) (cited in SMUGs Amended Complaint at dkt. 27, 118 n.50) (available at http://ccrjustice.org/files/12.03.20_IHR_SMUGProgress_AP.pdf, last visited August 6, 2012). Because it was selectively quoted and relied upon in SMUGs Amended Complaint, the Court may consider this entire document. (See section I, pp. 15-16, infra).
10
11
as a big victory, and the crippling damages put one tabloid out of business. 11 SMUGs own source document also quotes Frank Mugisha, SMUGs chairman, as stating that there is a shift in public opinion towards more tolerance of homosexuals. 12 As a result, SMUG has declared that we are no longer afraid of anything. 13 Mr. Mugisha has boasted that SMUG now even [has] a banner, which SMUG proudly and openly displays along with other pro-gay posters when its members walk the streets of Kampala. 14 According to Mr. Mugisha, we [SMUG] have received justice in Uganda courts. 15 But SMUG does not tell the Court that Mr. Lively himself condemned the incitements to violence in the strongest possible terms, and praised the Ugandan court for punishing them: The Ugandan newspaper which outed the Ugandan homosexual activists under a banner saying Hang Them, clearly WAS an incitement to violence and I join the rest of the civilized world in condemning it. The Ugandan court was right in declaring it illegal. 16 Although it has received justice in Ugandan courts, SMUG now files this suit against Mr. Lively in a United States court. Even if it had standing to bring this action, which it does not, and even if the Court had subject-matter jurisdiction over the alleged acts of persecution in Uganda, which it does not, on these facts SMUG has utterly failed to state any cause of action against Mr. Lively. SMUGs Amended Complaint should therefore be dismissed, with prejudice.
11
Ugandas Gays See Progress, supra note 10. Id. Id. Id. (emphasis added).
12
13
14
Uganda court orders anti-gay paper to shut: rights group, Reuters, November 1, 2010 (emphasis added) (available at http://www.reuters.com/article/2010/11/01/us-uganda-homosexualityidUSTRE6A04XT20101101, last visited June 20, 2012).
16
15
Dr. Lively Comments on Uganda Murder, supra note 8 (bold emphasis added; capitalization in original).
12
SUMMARY OF ARGUMENT After briefly discussing the pleading standard established by the Supreme Court (section I), this memorandum demonstrates that there are at least ten independent grounds that require the dismissal of this lawsuit. Section II demonstrates that, as a United States citizen, Mr. Lively did not check his First Amendment rights at the airport on his way to Uganda. The United States Constitution reigns supreme over any international law, and protects Mr. Lively anywhere in the world. The speech or conduct alleged by SMUG is nothing more than non-violent political speech and public discourse on matters of great public importance, and therefore cannot be punished. Section III demonstrates that this Court lacks subject-matter jurisdiction over SMUGs Alien Tort Statute claims, because SMUG has failed to establish that the specific tort it alleges, namely persecution on the basis of sexual orientation or transgender identity, is universally accepted and clearly defined under international law. The Rome Statute under which SMUG purports to sue is a treaty that has been expressly rejected by the United States. Even if the treaty were a customary binding international norm, which it is not, SMUG cannot establish that persecution based on sexual orientation or transgender identity is universally proscribed in a clearly defined way by the law of nations. A large number of nations view homosexuality as conduct and criminalize or discriminate against it. None of the major international human rights instruments prohibit discrimination or persecution based upon the grounds alleged by SMUG. Section IV demonstrates that SMUGs claim for persecution fails to state a cause of action against Mr. Lively. Mr. Livelys non-violent political speech cannot constitute persecution. Moreover, SMUG is an organization, not a human being with human rights, so it cannot be persecuted. And Mr. Lively is a private citizen, not a state actor, so he cannot be a
13
persecutor. Finally, SMUG does not allege that Mr. Lively himself committed any specific acts of persecution, and, in any event, SMUG has failed to alleged an essential element of the tort. Section V demonstrates that SMUG has failed to state a claim for aiding and abetting persecution. SMUG has failed to allege any conduct that constitutes aiding and abetting, and its conclusory, naked assertions fail to show the required criminal intent. Section VI demonstrates that the Court does not have subject-matter jurisdiction over SMUGs conspiracy to persecute claim, because conspiracy liability is not universally recognized and clearly defined under international law. In addition, SMUG has failed to state a cause of action for conspiracy to persecute, because its allegations do not show the required criminal intent. Section VII demonstrates that SMUGs claim for joint criminal enterprise should be dismissed for the same reasons as its conspiracy to persecute claim. Section VIII demonstrates that SMUGs newly-minted state law claims for civil conspiracy and negligence should be dismissed, because they are time-barred, they are not viable under Uganda law and they fail to state any claim for relief under Massachusetts law. Section IX demonstrates that SMUG lacks associational standing to bring this case in a representative capacity on behalf of its members. SMUGs representative-capacity claims for money damages sounding in tort are barred as a matter of law because they require individualized participation or proof. SMUGs representative-capacity claims for declaratory and injunctive relief are likewise barred, because they too require individualized participation or proof, and, in any event, the claims are not redressable. SMUG also lacks associational standing because it has not alleged sufficient causation to satisfy the traceability prong of Article III standing. Finally, SMUG lacks associational standing because it has not alleged authority to bring this action.
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Section X demonstrates that SMUG lacks standing to bring this action on its own behalf. SMUG has failed to allege sufficient causation to satisfy the traceability requirement of Article III standing, and SMUGs claims for equitable relief are not redressable. Finally, Section XI demonstrates that this Court lacks subject-matter jurisdiction over SMUGs persecution claims because the Alien Tort Statute does not reach Mr. Livelys alleged conduct outside the sovereign territory of the United States. SMUG has a heavy burden of rebutting a strong presumption against extraterritorial application of an act of Congress. SMUG cannot overcome that presumption here because nothing in the text, context, structure or legislative history of the Alien Tort Statue provides clear evidence of an affirmative intent by Congress to encroach upon the sovereign jurisdiction of other nations. This very issue is currently being considered by the United States Supreme Court, and, in the meantime, this Court is not bound by the decisions of other courts that have merely assumed or exercised extraterritorial jurisdiction sub silentio. For each of these reasons, SMUGs Amended Complaint should be dismissed with prejudice. LAW AND ARGUMENT I. THE STANDARD FOR DISMISSAL. SMUG attempts to substantiate the allegations in its Amended Complaint with over eighty (80) citations to outside materials. Although it relies extensively upon carefully selected and misleading portions of these materials, SMUG fails to attach any of them to its Amended Complaint. Nevertheless, this Court may review the entirety of these materials in deciding this Motion to Dismiss. Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993) (documents sufficiently referred to in the complaint may be considered on motion to dismiss, because [w]here plaintiff has actual notice and has relied upon these documents in framing the complaint the necessity of 15
translating a Rule 12(b)(6) motion into one under Rule 56 is largely dissipated) (internal alterations and citations omitted); Shaw v. Digital Equip. Corp., 82 F.3d 1194, 1220 (1st Cir. 1996) (In deciding a motion to dismiss a court may properly consider the relevant entirety of a document explicitly relied upon in the complaint, even though not attached to the complaint, without converting the motion into one for summary judgment). To survive this Motion to Dismiss, SMUG is required to provide in its Amended Complaint a short and plain statement of the claims that show it is entitled to relief. Fed. R. Civ. P. 8(a)(2). This statement must be more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although, at this stage of the proceedings, the Court must construe the Amended Complaint in the light most favorable to SMUG, and accept all factual allegations as true, the Court is not required to accept as true mere legal conclusions. Id. at 555. Accordingly, Rule 8 demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). SMUG must allege enough facts to state a claim to relief that is plausible on its face, Twombly, 550 U.S. at 555, but a claim has facial plausibility [only] when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678 (emphasis added). In Iqbal, the Supreme Court examined a complaint against then-Attorney General John Ashcroft alleging that plaintiff was subjected to torture and that Mr. Ashcroft was the principal architect of this invidious policy. Iqbal, 556 U.S. at 680. While plaintiff was fairly specific in his accusations and assertions, the Court nonetheless held that they were bare assertions and nothing more than a formulaic recitation of the elements of a constitutional discrimination claim. Id. at 681 (quoting Twombly, 550 U.S. at 555). The Court, while recognizing that all factual elements must be read in the light most favorable to plaintiff, held that [t]hreadbare 16
recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. at 678 (emphasis added). The Court further noted: Rule 8 marks a notable and generous departure from the hyper-technical, codepleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged but it has not show[n] that the pleader is entitled to relief. Id. at 678-79 (emphasis added) (quoting Fed. R. Civ. P. 8(a)(2)) (internal citations omitted). Thus, if a complaint contains only conclusions, it must be dismissed as failing to state a claim upon which relief can be granted. Id. Furthermore, even if the facts are well-pleaded, if they only show a mere possibility of misconduct, the claim should likewise be dismissed. Id. SMUGs Amended Complaint fails to meet this pleading standard and should be dismissed. II. SMUG HAS FAILED TO STATE A CLAIM BECAUSE MR. LIVELYS SPEECH AND CONDUCT ARE PROTECTED BY THE FIRST AMENDMENT. SMUGs lawsuit is a brazen and direct assault on Mr. Livelys First Amendment rights.17 As a United States citizen, Mr. Lively has a fundamental right to engage in non-violent political speech, not only in the United States but throughout the entire world. The First Amendment trumps international law, and not the other way around, as SMUG would prefer. Mr. Livelys civil political discourse is thus immune from SMUGs lawsuit, even if (and especially because) it offends SMUG. This lawsuit should therefore be dismissed.
This discussion assumes, for the sake of argument only, that SMUG has standing to bring this lawsuit and this Court has subject-matter jurisdiction over its claims. Neither premise is true, as demonstrated in sections III, VI, VII, IX, X and XI, infra.
17
17
A.
AS A UNITED STATES CITIZEN, MR. LIVELY HAS A FUNDAMENTAL RIGHT UNDER THE FIRST AMENDMENT TO ENGAGE IN NONVIOLENT POLITICAL SPEECH ANYWHERE IN THE WORLD.
Well over one century ago, the Supreme Court held that [t]he guaranties [the Constitution] affords apply only to citizens and others within the United States, or who are brought there for trial for alleged offenses committed elsewhere. Ross v. McIntyre, 140 U.S. 453, 464 (1891) (emphasis added) (citing Cook v. U. S., 138 U. S. 157, 181 (1891)). Subsequently, in Reid v. Covert, 354 U.S. 1 (1957), the Supreme Court reaffirmed this principle and extended it even to citizens tried by the United States in a foreign jurisdiction: [W]e reject the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land. This is not a novel concept. To the contrary, it is as old as government. It was recognized long before Paul successfully invoked his right as a Roman citizen to be tried in strict accordance with Roman law. Id. at 5-6 (emphasis added). This bedrock principle is fully recognized by the Restatement (Third) of Foreign Relations Law 721 (1987), which states that, [t]he Constitution governs the exercise of authority by the United States government over United States citizens outside United States territory, for example on the high seas, and even on foreign soil. Id. at cmt. b (emphasis added). More specifically, the Restatement recognizes that: The freedoms of speech, press, religion, and assembly, and the right not to be subject to an establishment of religion, are protected against infringement in the exercise of foreign relations power as in domestic affairs. Id. at cmt. d (emphasis added).
18
Accordingly, it is beyond cavil that Mr. Lively did not check his First Amendment rights at the airport before departing for Uganda, so that they could be lost in transit and wind up somewhere with the lost luggage. Since this Court 18 could not punish Mr. Lively for the nonviolent speech or conduct alleged by SMUG if it had occurred in the United States, the Court cannot punish that same speech or conduct because it took place in Uganda. 19 B. THE FIRST AMENDMENT TRUMPS INTERNATIONAL LAW AND IS NOT SUBSERVIENT TO IT.
An equally firm and non-negotiable first principle is that Mr. Livelys First Amendment rights trump anything contrary in the amorphous and shifting world of international law. No agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution. Reid, 354 U.S. at 16 (emphasis added) (emphasis added). It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights--let alone alien to our entire constitutional history and tradition--to permit[] the United States to exercise power under an international agreement without observing constitutional prohibitions. Id. at 17 (emphasis added) (This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty). The Restatement also recognizes this principle: A rule of international law or a provision of an international agreement of the United States will not be given effect as law in the United States if it is inconsistent with the United States Constitution. Restatement (Third) of Foreign Relations Law 115(3) (1987) (emphasis added).
This lawsuit does not raise the issue of whether a Ugandan court could exercise any jurisdiction or control over Mr. Livelys speech or conduct. On the contrary, the extraterritorial nature of Mr. Livelys speech or conduct presents a separate and insurmountable obstacle to SMUGs Amended Complaint because it deprives this Court of subject-matter jurisdiction. (See section XI, infra).
19
18
19
Thus, whatever the First Congress intended when it enacted the Alien Tort Statute in 1789, it could not have meant to render the First Amendment subservient to the dictates of international law, because any law repugnant to the constitution is void. Marbury v. Madison, 5 U.S. 137, 180 (1803) (emphasis added). [T]he [Alien Tort Statute] is not a blanket delegation of lawmaking to the democratically unaccountable international community of custom creators. Flomo v. Firestone Nat. Rubber Co., LLC, 643 F.3d 1013, 1016 (7th Cir. 2011) (emphasis added). The supremacy of the Constitution, coupled with its portability, mean that SMUG cannot hold Mr. Lively liable in this Court for any speech or conduct in Uganda which allegedly violated international law, if that speech or conduct is constitutionally protected in the United States. Because Mr. Livelys non-violent political speech or conduct is fully protected in the United States, SMUGs lawsuit must be dismissed as a matter of law. C. MR. LIVELYS NON-VIOLENT POLITICAL SPEECH OR CONDUCT IS PROTECTED BY THE FIRST AMENDMENT.
SMUGs sixty-one (61) page Amended Complaint against Mr. Lively can be fairly distilled down into two charges. SMUG is claiming that Mr. Lively committed crimes against humanity in violation of international law, because he: (1) shared his purported opinion that all who engage in homosexual conduct are evil genocidal, rapists and murders and have a predilection for child sexual violence; and (2) advocated, lobbied and otherwise tried to influence two members of the Ugandan government (and other private citizens) that they should propose and pursue laws that criminalize advocacy undertaken by [homosexual] rights advocates. (Dkt. 27, 65-93). Even if these allegations were true (and they could not be further from truth), such speech or conduct is fully protected by the First Amendment.
20
1.
Mr. Livelys Opinions and Non-Violent Political Speech Regarding Homosexuals and Homosexuality are Fully Protected.
The First Amendment reflects a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open. Snyder v. Phelps, 131 S. Ct. 1207, 1215, __ U.S. __ (2011) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). That is because speech concerning public affairs is more than self-expression; it is the essence of self-government. Id. at 1215 (quoting Garrison v. Louisiana, 379 U.S. 64, 7475 (1964)). Accordingly, speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection. Id. (emphasis added) (quoting Connick v. Myers, 461 U.S. 138, 145 (1983). Clearly, SMUG is deeply offended by Mr. Livelys speech and opinions. This, however, does not give it a cause of action against a United States citizen in a United States court. Even assuming that SMUGs allegations are true, citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment. Boos v. Barry, 485 U.S. 312, 322 (1988) (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56 (1988)) (internal quotes omitted). In Snyder, the Supreme Court afforded immunity from private suit to a religious group that opposed homosexuality in the military, and that held highly offensive signs and chanted equally offensive slurs outside a military funeral, including: Fag Troops, Semper Fi Fags, God Hates Fags, Fags Doom Nations, Not Blessed Just Cursed, You're Going to Hell, and God Hates You. 131 S. Ct. at 1216-17. The Supreme Court agreed that this message was particularly hurtful and caused incalculable grief. Id. at 1217-18. Nevertheless, the Court concluded that the speech was protected by the First Amendment and not actionable by the aggrieved parties in a United States court, because it was public discourse on a matter of public
21
concern. Id. at 1219. If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. Id. (quoting Texas v. Johnson, 491 U.S. 397, 414 (1989)). Indeed, the point of all speech protection is to shield just those choices of content that in someones eyes are misguided, or even hurtful. Id. (emphasis added) (quoting Hurley v. IrishAmerican Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 574 (1995)). Even if SMUGs allegations about Mr. Livelys speech were true, SMUGs tort claims against Mr. Lively would fail for the same reason the claim failed in Snyder. SMUGs chief complaint against Mr. Lively that he repeatedly characterized the [homosexual population] as rapists and murderers and child abusers[,] not to mention possessing the genocidal tendencies of the Nazis and Rwandan conspirators (dkt. 27, 93) is qualitatively no different than the protected statements in Snyder, that homosexuals doom nations, or that homosexuals are cursed, or that homosexuals are going to hell. SMUG complains that Mr. Livelys words are powerful, and that they influenced other people to do bad things. The Supreme Court agrees that, [s]peech is powerful. It can stir people to action andas it did hereinflict great pain. [But] we cannot react to that pain by punishing the speaker. Snyder, 131 S. Ct. at 1220 (emphasis added). Rather than ask this Court to punish the speaker, SMUG should sue actual criminals who commit or incite imminent violence against its members in Ugandan courts, just as it has successfully done on repeated occasions to date. As a Nation we have chosen a different courseto protect even hurtful speech on public issues to ensure that we do not stifle public debate. Snyder, 131 S. Ct. at 1220. That choice requires that we shield [Mr. Lively] from tort liability. Id. (emphasis added).
22
2.
SMUG has not Alleged any Actionable Conduct.
SMUG apparently senses that its Amended Complaint is on a collision course with the Constitution, and thus at least pays lip service to First Amendment principles by claiming that it seeks to challenge [Mr. Livelys] conduct through his involvement in a conspiracy to severely deprive people of their fundamental rights, and not his anti-gay speech or writings. (Dkt. 27, 11) (emphasis added). However, when SMUG attempts to describe Mr. Livelys so-called conspiratorial conduct, all it can allege is, well, speech. (Id. at 43-93). Just as putting a Horse sign around a cows neck does not make a bovine equine, Donovan ex rel. Donovan v. Punxsutawney Area Sch. Bd., 336 F.3d 211, 224 (3d Cir. 2003), so labeling speech as conduct or conspiracy does not render that speech actionable. Iqbal demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. 556 U.S. at 678. SMUGs allegations of conspiratorial conduct are bare assertions and nothing more than a formulaic recitation of the elements of a [tort] claim. Id. at 681 (quoting Twombly, 550 U.S. at 555). Here, the conspiracy alleged by SMUG is that (1) Mr. Lively saturated the public discourse on homosexuality in Uganda with his opinions about homosexuality and homosexuals in a manner that offended SMUG, and (2) Mr. Lively then worked with two other private Ugandan citizens to lobby and influence two members of the Ugandan government to introduce legislation which allegedly would render [SMUGs] work and mere existence illegal. (Dkt. 27, 65-93). Aside from the fact that the legislation in question was never enacted, and that activists believe the controversial law will never pass (Ugandas Gays See Progress, supra note 10), Mr. Lively has a protected right to petition government to enact legislation, regardless of whether SMUG likes his proposals or even his motives. [A]ll persons, regardless of motive, are guaranteed by the First Amendment the right to seek to influence the government or its officials to adopt a new policy, and they cannot be 23
required to compensate another for loss occasioned by a change in policy should they be successful. Sierra Club v. Butz, 349 F. Supp. 934, 938 (N.D. Cal. 1972) (emphasis added) (applying Eastern R.R. Conference v. Noerr Motor Freight, 365 U.S. 127 (1961)). Accordingly, the First Circuit has made it clear that there is no remedy against private persons who urge the enactment of laws, regardless of their motives. Tomaiolo v. Mallinoff, 281 F.3d 1, 11 (1st Cir. 2002) (emphasis added) (internal alterations omitted) (quoting Munoz Vargas v. Romero Barcelo, 532 F.2d 765, 766 (1st Cir. 1976), in turn citing Noerr Motor Freight, Inc., 365 U.S. 127). Indeed, [i]n numerous cases, the courts have rejected claims seeking damages for injuries allegedly caused by the defendants actions directed to influencing government action. Brownsville Golden Age Nursing Home, Inc. v. Wells, 839 F.2d 155, 160 (3d Cir. 1988) (collecting cases). This case is no different. Mr. Lively cannot be liable for any conspiracy with members of the government to introduce or influence legislation, not only because the legislation was never enacted, but because he was exercising a protected First Amendment right. Aside from disseminating his opinions and attempting to influence legislation, SMUG does not charge Mr. Lively with any speech or conduct that incited imminent violence against anyone. Sure, SMUG recites in a conclusory and threadbare fashion that Mr. Lively invited, induced and encouraged a proportional response from Ugandans i.e., severe repression, arrest and certainly even violence. (Dkt. 27, 93). SMUGs allegation contains the seeds of its own destruction, because, in the same paragraph, SMUG reveals just how Mr. Lively supposedly made these incitements. (Id.) It was not by explicitly calling for any violence, let alone imminent violence, against homosexuals but merely by allegedly repeatedly characterizing the [homosexual population] as rapists and murders and child abusers not to mention possessing [] genocidal tendencies. (Id.) A protected opinion does not lose its protection merely because it is repeated. 24
SMUG does not seem to appreciate that there is a world of difference between these two entirely hypothetical statements: Homosexuals are rapists and murderers and child abusers with genocidal tendencies. Homosexuals are rapists and murderers and child abusers with genocidal tendencies, and you need to meet me at SMUGs headquarters today at 5:00 p.m. so that we can hurt them.
While SMUG has alleged plenty of the type of statements such as the one on the left, it has alleged none such as the one on the right, certainly not by Mr. Lively. As such, SMUG has not alleged the type of incitement to imminent violence by Mr. Lively that would suffice to pierce his First Amendment privilege. [M]ere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment. N. A. A. C. P. v. Claiborne Hardware Co., 458 U.S. 886, 927 (1982) (italics in original) (citing Brandenburg v. Ohio, 395 U.S. 444 (1969)). Neither do threats of vilification or social ostracism, which are likewise constitutionally protected and beyond the reach of a damages award. Claiborne, 458 U.S. at 926 (emphasis added). Only advocacy [which] is directed to inciting or producing imminent lawless action and is likely to incite or produce such action is unprotected. Id. at 928 (citing Brandenburg, 395 U.S. at 447). But the mere abstract teaching ... of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action. Id. (citing Noto v. United States, 367 U.S. 290, 297298 (1961)). Speech that amount[s] to nothing more than advocacy of illegal action at some indefinite future time, cannot be punished. Hess v. Indiana, 414 U.S. 105, 108 (1973) (state could not punish speaker who exclaimed to police that well take the f----- street later, because lawless action being advocated for later was not imminent) (emphasis added).
25
In Claiborne, the Supreme Court held that strong language and emotionally charged rhetoric that arguably advocated racial violence was nonetheless protected, even though violence ultimately resulted, because the acts of violence occurred weeks or months after the speech, and thus it was not imminent. 458 U.S. at 928 (emphasis added). Here, even if SMUGs allegations about Mr. Livelys speech were true, they could not even establish that Mr. Lively advocated any violence, much less imminent violence. And, if SMUG could establish that Mr. Livelys speech advocated violence in the abstract, which it cannot, that would clearly be insufficient to state a cause of action under Brandenburg, Claiborne and Hess. To be sure, SMUG does allege that other individuals and organizations, whom it has not brought before this Court, have made statements that incite violence, such as the HANG THEM tabloid headline. But SMUG does not allege that Mr. Lively made such statements, or that he asked those third parties to make them. In fact, the very website articles that SMUG cites in its Amended Complaint demonstrate that Mr. Lively strongly condemned such statements. SMUGs litigation attention should therefore be focused on those third parties, not Mr. Lively. Indeed, SMUG has succeeded in obtaining both money damages and injunctions against such publications in Ugandan courts. SMUG has no cause action in this Court. In sum, the First Amendment traveled with Mr. Lively to Uganda, and trumps any contrary provision in international law upon which SMUG seeks to premise liability. Because Mr. Livelys non-violent political speech is firmly and fundamentally protected, SMUG cannot state a cause of action and its Amended Complaint should be dismissed.
26
III.
THIS COURT LACKS SUBJECT-MATTER JURISDICTION BECAUSE SMUG HAS NOT ALLEGED CONDUCT IN VIOLATION OF UNIVERSALLY ACCEPTED AND CLEARLY DEFINED INTERNATIONAL LEGAL NORMS. There is no federal subject-matter jurisdiction under the Alien Tort [Statute] unless the
complaint adequately pleads a violation of the law of nations (or treaty of the United States). Kadic v. Karadzic, 70 F.3d 232, 238 (2d Cir. 1995). But not every violation of any international law or norm comes under the subject-matter jurisdiction afforded by the Alien Tort Statute. Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004). Only those international norms that are specific, universal and obligatory come under its purview. Id. ([a]ctionable violations of international law must be of a norm that is specific, universal, and obligatory) (emphasis added) (quoting In re Estate of Marcos Human Rights Litigation, 25 F.3d 1467, 1475 (9th Cir. 1994)). Lower courts are not free to continually recognize new international torts; instead, they must engage in vigilant doorkeeping to maintain only a narrow class of actionable torts. Sosa, 542 U.S. at 729. Accordingly, Sosa requires that this Court recognize only forms of liability that have been universally accepted by the community of developed nations. In re S. African Apartheid Litig., 617 F. Supp. 2d 228, 263 (S.D.N.Y. 2009) (emphasis added). Moreover, [i]t is only where the nations of the world have demonstrated that the wrong is of mutual, and not merely several, concern, by means of express international accords, that a wrong generally recognized becomes an international law violation within the meaning of the statute. Filartiga v. Pena-Irala, 630 F.2d 876, 888 (2d Cir. 1980) (emphasis added). Thus, even if every nation of the world were to adopt a domestic prohibition against certain conduct, it would still only constitute an international norm where it affects the relationship between states or between an individual and a foreign state. Id.; see also, Flores v. S. Peru Copper Corp., 414 F.3d 233, 249 (2d Cir. 2003) (Even if certain conduct is universally proscribed by States in their domestic law, that fact is not necessarily significant or relevant for purposes of customary international law). 27
A.
SMUG CANNOT ESTABLISH THAT THE TORT OF PERSECUTION IS UNIVERSALLY ACCEPTED AND CLEARLY DEFINED, BECAUSE THE ROME STATUTE IS A TREATY, NOT A NORM, AND WAS EXPRESSLY REJECTED BY THE UNITED STATES.
The only source of international law SMUG points to for its contention that the tort of persecution is universally proscribed and clearly defined is the Rome Statute of the International Criminal Court. (Dkt. 27, 3). However, [t]he Rome Statute, which created the International Criminal Court (ICC), is properly viewed in the nature of a treaty and not as customary international law. Doe v. Exxon Mobil Corp., 654 F.3d 11, 35 (D.C. Cir. 2011) (emphasis added). The D.C. Circuit in Exxon Mobil found that, by its own terms, the Rome Statute did not represent international law norms, and as such could not support a claim under the Alien Tort Statute. Id. The D.C. Circuit further held that, even if the Rome Statute were sufficient as a source of international law norms, the reservation surrounding its ratification, indeed the fact that the United States still refuses to ratify the treaty, prevents its contents from attaining the status of universally recognized, binding international law, as required for Alien Tort Statute jurisdiction. Id. at 35-36. 20 Indeed, the United States has not just delayed ratification of the Rome Statute, but actually rejected it and withdrew its signature from the treaty. Id. at 36, n.22. This outright rejection of the Rome Statute is conclusive evidence that the United States, a major world power, does not recognize it as a universally binding international norm. Id. Neither should this Court. Moreover, by withdrawing its signature and expressly rejecting this treaty, the intention of the United States government was to render its citizens beyond its reach. SMUG is now attempting an
20
That other courts simply assumed that the Rome Statute constituted or embodied customary international law without squarely analyzing the question, and without even acknowledging its express rejection by the United States, is of little significance. See, e.g., Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 259 (2d Cir. 2009) (quoting Rome Statute regarding the standard for liability for aiding and abetting).
28
end-run around that protection, by seeking to subject a United States citizen to the requirements of the very treaty that his government rejected, and in a United States court to boot. This Court should not countenance SMUGs subversion. The D.C. Circuits rejection of the Rome Statute as a basis for establishing subject-matter jurisdiction under the Alien Tort Statute is consistent with the Second Circuits holding in Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104 (2d Cir. 2008). In Vietnam Assn, the Second Circuit held that the Geneva Protocol was not binding international law, even though it specifically sanctioned the conduct in question, because of the nature and scope of the reservations to ratification. Id. at 118. In that case, the United States had ultimately ratified the treaty but, because of the initial reservations, the court nevertheless found that it would be an impermissible stretch to find that the 1925 Geneva Protocol had acquired the status of binding customary international law during the Vietnam conflict. Id. If mere reservations prior to eventual ratification are sufficient to remove an international norm from the purview of the Alien Tort Statute, then the failure to ratify a treaty should doubly suffice, and the express rejection of a treaty (through the withdrawal of the United States signature) should triply suffice. SMUG cannot invoke the Courts subject-matter jurisdiction by reference to the Rome Statute, and thus its Amended Complaint should be dismissed. B. SMUG CANNOT ESTABLISH THAT PROHIBITION OF PERSECUTION BASED ON SEXUAL ORIENTATION AND TRANSGENDER IDENTITY IS UNIVERSALLY ACCEPTED AND CLEARLY DEFINED.
Even if the Rome Statute were universally accepted and clearly defined to come within the subject-matter jurisdiction conferred by the Alien Tort Statute, which it is not, that would not be the end of the inquiry, and SMUGs persecution claims would still have to be dismissed for lack of jurisdiction. This is because, as this District has recognized,
29
Case: 13-2503 Case Document: 3:12-cv-30051-MAP 00116621208Document Page: 100 33 Filed Date 08/10/12 Filed: 12/06/2013 Page 35 of 109 Entry ID: 5785627
A precept of international law cannot be recognized as such unless and until that recognition is universal. And the requirement of universality goes not only to recognition of the norm in the abstract sense, but to agreement upon its content as well. Xuncax v. Gramajo, 886 F. Supp. 162, 187 (D. Mass. 1995) (WOODLOCK, J.) (emphasis added). Thus, SMUG must show universal recognition not only of the Rome Statute in general, but also of the specific provision on which it relies, that is Article 7(1)(h)s proscription of persecution, and the specific interpretation and application which SMUG advances. Id. Consistent with the Supreme Courts eventual admonition in Sosa, this District in Xuncax required plaintiffs in an Alien Tort Statute case to demonstrate that: 1) no state condone[s] the act in question and there is a recognizable universal consensus of prohibition against it; 2) there are sufficient criteria to determine whether a given action amounts to the prohibited act and thus violates the norm; [and] 3) the prohibition against it is non-derogable and therefore binding at all times upon all actors. 886 F. Supp. at 184 (emphasis added). Even if this Court were to accept the Rome Statute as a universally binding international norm notwithstanding the United States express rejection of it, SMUG would still flunk the jurisdictional test because it could not get past the first element in Xuncax. As shown below, there is no recognizable universal consensus of prohibition against persecution, meaning denial of fundamental rights, based upon the grounds alleged by SMUG (i.e., sexual orientation or [trans]gender identity). 21
Universal consensus in this case is not only a jurisdictional concern mandated by Sosa and followed in Xuncax. The plain text of the Rome Statute itself provides that the crime of persecution includes only those actions against a group or collectivity based on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law. Rome Statute of the International Criminal Court, Art. 7(1)(h) (emphasis added) (available at http://untreaty.un.org/cod/icc/statute/romefra.htm, last visited June 20, 2012). Therefore, to the extent that the alleged persecution is not on any of the specific grounds enumerated in the text, it is only actionable if premised on a ground universally recognized as impermissible under international law. Id.
21
30
The chief ground upon which SMUG claims persecution is sexual orientation. (Dkt. 27, 1, 5, 13, 44, 232, 237, 238, 241, 247, 248). However, sexual orientation is plainly not one of the grounds enumerated in the Rome Statute. SMUG cannot establish that persecution based upon sexual orientation is universally recognized as impermissible under international law, because a large number of nations treat homosexuality as conduct, not an identity, and ban, restrict or otherwise discriminate against or persecute homosexual conduct. The following findings by scholars and human rights organizations conclusively demonstrate that persecution of homosexual conduct (or sexual orientation) is not universally proscribed in the international community, and therefore cannot serve as a basis for an action premised on persecution: [D]iscrimination on the basis of sexual orientation still persists throughout most of the developing world. Gay, lesbian, bisexual, or transgender (GLBT) relations are criminalized in over eighty-two nations, and the penalty for being gay often includes public humiliation, hard labor, confinement, torture, harassment, blackmail, spurious trials with no right to appeal or death. 22 [A]t least fifty-five countries across the world still criminalize homosexuality, and only a handful of countries have adopted legislation designed to prevent sexual orientation discrimination. 23 According to a 2009 study by The International Lesbian, Gay, Bisexual, Trans and Intersex Association, no less than 80 countries around the world consider homosexuality illegal. 24
Pratima Narayan, Somewhere over the Rainbow. . . International Human Rights Protections for Sexual Minorities in the New Millennium, 24 B.U. Int'l L.J. 313, 314 (2006) (emphasis added).
23
22
Debra L. DeLaet, Don't Ask, Don't Tell: Where Is the Protection Against Sexual Orientation Discrimination in International Human Rights Law?, 7 Law & Sexuality 31, 33 (1997) (emphasis added).
24
Daniel Ottosson, State-sponsored homophobia: a world survey of laws criminalising same-sex sexual acts between consenting adults, International Lesbian, Gay, Bisexual, Transgender and Intersex Association (ILGA), Brussels, May 2009, p. 5 (available at http://ilga.org/historic/Statehomophobia/ILGA_State_Sponsored_Homophobia_2009.pdf, last visited June 20, 2012).
31
According to the 2012 World Report of Human Rights Watch, which calls itself one of the worlds leading independent organizations dedicated to defending and protecting human rights: 25 o In the European Union, homophobic and transphobic biases persist in public opinion, policies, and laws. 26 U[nited] S[tates] law offers no protection against discrimination based on sexual orientation or gender identity. 27
The 2011 World Report by the same organization reported that in the European Union, Germany and other EU states blocked efforts to upgrade EU antidiscrimination laws to prohibit discrimination on grounds of sexual orientation. National obstacles to ending discrimination against lesbian, gay, bisexual, and transgender people also remained, including in the Netherlands. 28
Moreover, SMUG complains bitterly that the bill contemplated by the Ugandan Parliament, if it is ever passed, will criminalize its advocacy, and thus would render [its] work and mere existence illegal. (Dkt. 27, 68). Setting aside the fact that SMUGs complaint is not ripe and should be addressed to the Ugandan Parliament, not Mr. Lively or this Court, the criminalization of advocacy on homosexual issues is by no means peculiar to Uganda, and is not universally condemned by the international community, or even the so-called civilized world: As of 1997, only a few years before SMUG alleges that Mr. Livelys criminal conduct began in Uganda, many states restrict gay, lesbian, and bisexual persons freedom of speech and expression. Notably, these restrictions are in place in democracies as well as nondemocracies. For example, it is illegal in both Great Britain and Austria to publicly advocate, promote or encourage homosexuality. As these examples indicate, sexual orientation discrimination is prevalent throughout most of the world. 29
25
World Report 2012, Human Rights Watch, at Preface http://www.hrw.org/sites/default/files/reports/wr2012.pdf, last visited June 20, 2012). Id. at 444 (emphasis added). Id. at 662-63 (emphasis added).
(available
at
26
27
World Report 2011, Human Rights Watch, p. 424 (emphasis added) http://www.hrw.org/sites/default/files/reports/wr2011.pdf, last visited June 20, 2012).
29
28
(available
at
DeLaet, supra note 23, at 33.
32
As of 2011, [O]fficial discrimination against lesbian, gay, bisexual, and transgender people in China limits them from realizing fundamental rights of expression and association. 30 As of 2012 [t]he tendency in Russia is toward limiting freedom of speech and freedom to gather, targeting any group that somehow stands up for its rights.31 St. Petersburg has recently become the fourth city in Russia to pass a law criminalizing homosexual propaganda. 32 The law is part of a wider government initiative, as politicians and Orthodox Church push for laws to apply nationwide. 33 Gay pride parades are regularly banned in Russia and violently broken up by police. 34
The fact that much of the rest of the world does not cherish the First Amendment freedoms of speech and expression that are fundamental to United States citizens can hardly come as a surprise to SMUG. However dearly our country holds First Amendment rights, [the Court] must conclude that a violation of the First Amendment right of free speech does not rise to the level of such universally recognized rights and so does not constitute a law of nations. Guinto v. Marcos, 654 F. Supp. 276, 280 (S.D. Cal. 1986) (dismissing Alien Tort Statute claim for lack of subject-matter jurisdiction) (emphasis added) (quoted with approval in, In re Estate of Ferdinand Marcos, Human Rights Litig., 25 F.3d 1467, 1475 (9th Cir. 1994)). See also, Villeda Aldana v. Fresh Del Monte Produce, Inc., 305 F. Supp. 2d 1285, 1298 (S.D. Fla. 2003) (abridgement of rights like the freedom of speech, has been found not to constitute a violation of the law of nations) (dismissing Alien Tort Statute claim for lack of subject-matter jurisdiction
30
World Report 2011, supra note 28, at p. 307.
St. Petersburg bans homosexual propaganda, The Guardian, March 12, 2012 (emphasis added) (available at http://www.guardian.co.uk/world/2012/mar/12/st-petersburg-bans-homosexual-propaganda, last visited June 20, 2012); see also, Michael Schwirtz, Anti-Gay Law Stirs Fears in Russia, (available at http://www.nytimes.com/2012/03/01/world/asia/anti-gay-law-stirs-fears-in-russia.html, last visited June 20, 2012).
32
31
Id. Id. (emphasis added). Id. (emphasis added).
33
34
33
because plaintiffs could not establish that First Amendment-type rights are universally recognized around the world) (citing Guinto, 654 F. Supp. at 280), aff'd in part, vacated in part on other grounds, 416 F.3d 1242 (11th Cir. 2005). Since sexual orientation does not enjoy universally-recognized fundamental rights in much of the world, it is not surprising that international treaties, human rights documents and legal norms do not at all, much less universally, proscribe or condemn even the outright criminalization of homosexual conduct, much less mere public or private speech against it. This fact is also borne out in scholarly surveys of international law on this subject: [N]one of these documents [international human rights instruments] explicitly outlaws discrimination on the basis of sexual orientation. Sexual minorities continue to fear the overwhelming threats of state-sanctioned persecution, and stronger international protections for gays and lesbians are necessary to achieve even the most fundamental human rights. 35 [T]he Universal Declaration of Human Rights the International Covenant on Economic, Social and Cultural Rights the International Covenant on Civil and Political Rights most of the human rights documents adopted in the post-World War II era, including the 1951 Convention on the Prevention and Punishment of the Crime of Genocide, the 1951 Convention Relating to the Status of Refugees, and various regional human rights instruments, notably missing from the language in these human rights documents are clauses that specifically identify sexual orientation as an inappropriate basis for discrimination. 36
In addition to sexual orientation, SMUG also claims persecution on the grounds of gender and gender identity. (Dkt. 27, 1, 5, 13, 44, 232, 237, 238, 241, 247, 248). By these terms, SMUG cannot possibly mean that its members were persecuted because they were naturally male or female. There is not even one allegation in SMUGs Amended Complaint that could suggest that Mr. Lively (or any of his so-called co-conspirators, or any of the alleged perpetrators of the eight acts of persecution) harbors animus towards men because they were born
35
Narayan, supra note 22, at 315 (emphasis added). DeLaet, supra note 23, at 31-32 (emphasis added).
36
34
men, or towards women because they were born women. The only animus alleged is towards lesbian, gay, bisexual, transgender and intersex people. (Dkt. 27, 1). Thus, to the extent SMUG intended to use gender or gender identity in the traditional sense of those terms, to claim persecution based on natural male or female status, that would be precisely the type of [t]hreadbare recital[] of the elements of a cause of action, supported by mere conclusory statements, [that] do[es] not suffice. Iqbal, 556 U.S. at 678. 37 What SMUG obviously alleges is not persecution based on traditional gender identity, but rather persecution based on transgender or intersex identity. However, those two grounds, like sexual orientation, are not among the impermissible grounds enumerated in the Rome Statute. Art. 7(1)(h). The Statute expressly defines the term gender as the two sexes, male and female, and provides that it does not indicate any meaning different from [that]. Id. at Art. 7(3). Moreover, like sexual orientation, SMUG cannot establish that discrimination based upon transgender or intersex identity is universally recognized as impermissible under international law. As shown by the studies above, a great many nations do not recognize such identities and therefore do not afford them fundamental rights. Even more specifically:
SMUG also cannot claim traditional gender discrimination for two other reasons. First, SMUG is an organization, so it is neither male nor female, and does not have a gender identity. Therefore, SMUG cannot state a claim for gender identity persecution on its own behalf. (See section IV(B), infra). Second, SMUG cannot state a claim for traditional gender identity persecution in a representative capacity, on behalf of its members, because such claim would fail the second prong of the Hunt test for associational standing. Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977) (association has standing to bring representative claims only when the interests it seeks to protect are germane to the organizations purpose). (See section IX, infra). Here, SMUG has not alleged that its purpose is to advocate for, or support, men or women against traditional gender discrimination or persecution. (Dkt. 27, 1, 18, 20). It has alleged only that its purpose and mission is to advocat[e] on behalf of lesbian, gay, bisexual, transgender, and intersex people. (Id. at 18). Therefore, SMUG cannot bring a claim for persecution based upon traditional gender identity in either an individual or representative capacity.
37
35
According to a 2009 study by The International Lesbian, Gay, Bisexual, Trans and Intersex Association, only sixteen countries in the entire world prohibit discrimination in employment based on gender identity. 38 According to a 2012 study by Human Rights Watch, [a]t least sixteen EU countries, including the Netherlands, have laws requiring transgender people to undergo sex reassignment surgery and irreversible sterilization to legally change their gender. 39
In sum, [t]here is no particular or universal understanding of the civil and political rights covered by [SMUGs] claim. Kiobel v. Royal Dutch Petroleum Co., 456 F. Supp. 2d 457, 467 (S.D.N.Y. 2006), aff'd in part, rev'd in part on other grounds, 621 F.3d 111, 190 (2d Cir. 2010), cert. granted, 132 S. Ct. 472 (2011) (concluding that court lacked subject-matter jurisdiction over claims of denial of life, liberty, security and association under the Alien Tort Statute, because rights were not sufficiently specific and not universally recognized). SMUG cannot articulate any universally recognized international norms that Mr. Lively allegedly violated. As such, SMUGs Amended Complaint should be dismissed, with prejudice. IV. SMUGS CLAIM FOR PERSECUTION FAILS TO STATE A CAUSE OF ACTION. Even if SMUG had standing, the Court had subject-matter jurisdiction, and the First Amendment was not immovably in SMUGs way, none of which is true, SMUG has still failed to state a cause of action for persecution, because: (A) Mr. Livelys protected political speech is not persecution; (B) SMUG is an organization, not an individual, and cannot be persecuted; (C) SMUG has failed to allege an essential element of persecution; (D) Mr. Lively is a private individual, not a state actor, and cannot be a persecutor; and (E) SMUG has not alleged that Mr. Lively himself committed any acts of persecution. Accordingly, SMUGs persecution claims (Count I, II and III) should be dismissed, with prejudice.
38
Ottosson, supra note 24, p. 51. World Report 2012, supra note 25, at p. 444.
39
36
A.
MR. LIVELYS PROTECTED PERSECUTION.
POLITICAL
SPEECH
IS
NOT
[T]he [Alien Tort Statute] applies only to shockingly egregious violations of universally recognized principles of international law. Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 167 (5th Cir. 1999) (emphasis added) (quoting Zapata v. Quinn, 707 F.2d 691, 692 (2d Cir. 1983)). SMUG purports to charge Mr. Lively with the crime against humanity of persecution, but a crime against humanity is reserved for the most egregious violations of international law, such as genocide and slavery. Villeda Aldana v. Fresh Del Monte Produce, Inc., 305 F. Supp. 2d 1285, 1300 (S.D. Fla. 2003) (emphasis added), aff'd in part, vacated in part on other grounds, remanded sub nom. Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242 (11th Cir. 2005). Most [Alien Tort Statute] cases have determined liability for crimes against humanity only for the most heinous of crimes, such as murder and extermination, slavery, ethnic cleansing, and torture, which are undertaken as part of a widespread or systematic attack against a civilian population. Villeda Aldana, 305 F. Supp. 2d at 1300 (emphasis added). SMUG asks this United States Court to punish a United States citizen because he allegedly did two things, both of which are wholly protected by the First Amendment as core political speech: (1) allegedly shared his opinion that all who engage in homosexual conduct are evil and have a predilection for child sexual violence; and (2) advocated, lobbied and otherwise tried to influence two members of the Ugandan government (and other private citizens) to propose and pursue laws that criminalize advocacy undertaken by [homosexual] rights advocates. (Dkt. 27, 65-93). Even if SMUGs allegations were true (and they could not be farther from truth), Mr. Livelys protected political speech cannot possibly constitute a crime against humanity, even by the wildest stretch of imagination. Zapata v. Quinn, 707 F.2d 691,
37
692 (2d Cir. 1983) (affirming dismissal of Alien Tort Statute claims, and awarding double costs as sanctions for bringing a frivolous lawsuit). SMUG may vehemently disagree with Mr. Livelys opinions on homosexuality and homosexual conduct. SMUG may find those opinions offensive or hurtful. But SMUG has no right to invoke the jurisdiction of this Court against one of its citizens because SMUG was offended or insulted by Mr. Livelys speech and advocacy, and certainly not under the guise of a crime against humanity, reserved only for the most heinous of crimes. Villeda Aldana, 305 F. Supp. 2d at 1300. Mr. Lively in no way endorses or approves of any violence that may have been perpetrated against anyone. He has strongly condemned the killing of David Kato, even after it was revealed that Mr. Kato was killed by a homosexual prostitute over a prostitution deal gone bad. (See p. 8, supra). Mr. Lively has also strongly condemned those who have incited others to imminent violence, and has praised Ugandan courts for punishing such incitements. (See p. 12, supra). While he has certainly criticized, sometimes with strong words, those who push for the normalization of homosexual conduct, Mr. Lively has never incited others to imminent violence, and SMUG does not allege otherwise. SMUG has not alleged any direct connection between Mr. Lively and the alleged perpetrators of the eight acts of persecution in its Amended Complaint, other than to claim that Mr. Livelys opinions created a climate of hostility and prejudice against homosexuals. (Dkt. 27, 226). These allegations fall far short of the standard necessary to overcome the high wall of protection afforded for pure speech under the First Amendment. [T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Brandenburg v. Ohio, 38
395 U.S. 444, 447 (1969) (per curiam) (emphasis added). SMUGs allegations do not remotely meet this high standard here. Moreover, whether the climate is hostile or not, whenever SMUG or its constituents have gone to court in Uganda to seek redress for unlawful arrests, acts of violence or even incitements to imminent violence, they have prevailed and their rights under Ugandan law were affirmed. SMUG and its constituents have won damages against the police, they have put offending tabloids out of business with damage awards, and they have obtained permanent injunctions against future incitements by other publications. (See pp. 6-7, 11-12, supra). SMUGs own chairman declared that we have received justice, and we are no longer afraid of anything. (See p. 12, supra). The homosexual prostitute who confessed to killing Mr. Kato is now rotting in jail. (See p. 7, supra). The anti-homosexuality bill has never been enacted into law, and activists believe the controversial law will never pass. (See pp. 10-11, supra). This is hardly the intentional and severe deprivation of fundamental rights and the widespread or systematic attack against a civilian population that SMUG alleges in a conclusory, threadbare fashion just to recite the elements of persecution, the most heinous of crimes. (Dkt. 27, 229-235). And it certainly is not persecution by Mr. Lively, whom SMUG alleges to have done nothing but speak. Mr. Lively hopes that SMUG and its constituents are never subjected to violence, but if they are, they should continue to pursue the real perpetrators of such crimes in Ugandan courts, as they have repeatedly and successfully done thus far. SMUG should not clog up United States courts with meritless lawsuits against United States citizens exercising their fundamental right to non-violent political discourse, for the admitted purpose of mak[ing] it too costly to exercise those fundamental rights. (See pp. 10-11, supra). SMUGs Amended Complaint should be dismissed, with prejudice. 39
B.
SMUG CANNOT STATE A CLAIM FOR PERSECUTION IN ITS OWN RIGHT, BECAUSE IT IS AN ORGANIZATION, NOT AN INDIVIDUAL.
In its First Claim for Relief, SMUG attempts to assert a claim of persecution not only in a representative capacity, but also on its own behalf. (Dkt. 27, 236-239). However, to the extent it is even a tort, persecution can only be claimed by natural persons, not organizations. SMUG defines [p]ersecution as a crime against humanity (id. at 3) (emphasis added), and repeatedly and exclusively refers to it as such in the Amended Complaint. SMUG, however, is obviously not a human being, so it cannot claim to be the victim of a crime against humanity. SMUG also defines persecution as the intentional and severe deprivation of fundamental rights contrary to international law by reason of [] identity (id.), and claims that it was itself deprived of these rights on the basis of gender and/or sexual orientation and gender identity. (Id. at 232, 237-238). However, because it is not a human being, SMUG can have neither a gender nor gender identity. Equally obvious, because SMUG is not a human being, it can have neither sexual relations, nor sexual orientation nor sexual identity. Even SMUG apparently recognizes these irrefutable facts, because, notwithstanding its claim that it has been persecuted, it ultimately admits in its Amended Complaint that [t]he prohibition on persecution protects individuals on the basis of their identity. (Id. at 3) (emphasis added). Since SMUG also admits that it is an umbrella organization, and not an individual (id. at 1) (emphasis added), there is no dispute that SMUG has no standing to claim persecution on its own behalf. Beyond unassailable logic, SMUGs inability to claim persecution as an organization is confirmed by the dictates of international law: The contemporary international law of human rights has developed largely since the Second World War. It is concerned with natural persons only, and it applies to all human beings, not to aliens alone. It reflects general acceptance that every individual should have rights in his or her society which the state should recognize, respect, and ensure.
40
Restatement (Third) of Foreign Relations Law VII, Introductory Note (1987) (emphasis added). The Restatement specifically defines Human Rights as the freedoms, immunities, and benefits which, according to widely accepted contemporary values, every human being should enjoy in the society in which he or she lives. Restatement (Third) of Foreign Relations Law 701 cmt. a (1987) (emphasis added). And, while subsections (1) and (2) of 703 of the Restatement provide that States may pursue certain remedies, the last subsection, (3), provides: An individual victim of a violation of a human rights agreement may pursue any remedy provided by that agreement or by other applicable international agreements. Restatement 703 (emphasis added). SMUG is neither a state, nor an individual. Nowhere are corporations, organizations or associations granted a similar right or remedy. (Id.) The Second Circuit has recently reinforced the principle that only states and individuals have rights (and liabilities) in the international human rights arena. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 118 (2d Cir. 2010) reh'g denied, 642 F.3d 268 (2d Cir. 2011) and cert. granted, 132 S. Ct. 472 (U.S. 2011) (The singular achievement of international law since the Second World War has come in the area of human rights, where the subjects of customary international law i.e., those with international rights, duties, and liabilities now include not merely states, but also individuals) (bold emphasis added; italics in original). In Kiobel, the Second Circuit affirmed the dismissal of human rights abuse claims brought under the Alien Tort Statute against corporate defendants, concluding that organizations are neither states nor individuals, and thus cannot violate international law. Id. at 148-149. While that court was focused on whether organizations could be defendants under the Alien Tort Statute, the reasoning for its decision that only states and individuals have rights, duties and liabilities in
41
the international human rights arena means that organizations also cannot be plaintiffs (in their own right), because they do not have human rights. Id. at 118 (emphasis added). 40 Even more on point, in Chowdhury v. WorldTel Bangladesh Holding, Ltd., 588 F. Supp. 2d 375 (E.D.N.Y. 2008), two alien corporations sought to bring various tort claims against a United States citizen and others under the Alien Tort Statute. Id. at 378-79. The corporations alleged that one of their officers had been tortured and subjected to cruel, inhuman or degrading treatment. Id. at 378. The corporations pleaded the same claims as the individual officer, and sought to recover in their own right for damages they claimed to have incurred in connection with the ill treatment of their officer. Id. The court allowed some of the individual plaintiffs claims to proceed, but dismissed with prejudice all of the claims brought by the corporation: there is no viable theory under the [Alien Tort Statute] upon which the corporate plaintiffs here can recover. Corporations are not tortured; they are not subject to cruel, inhuman or degrading treatment. There is no domestic law norm that would recognize such a claim, let alone an international law norm. Id. at 387 (emphasis added). If an organization cannot be tortured or subjected to cruel, inhuman or degrading treatment, then it cannot be persecuted. Accordingly, SMUG failed to state a persecution claim for itself, and Counts I, II and III of its Amended Complaint should be dismissed. C. SMUG HAS FAILED TO PLEAD AN ESSENTIAL ELEMENT OF PERSECUTION.
Even if SMUG could be persecuted as an organization, which it cannot be, SMUG still has not stated a claim for persecution, either representatively or in its own right, because it has failed to plead an essential element of persecution.
As detailed in Mr. Livelys Motion to Stay Proceedings, the Kiobel case is currently pending at the Supreme Court. (Dkts. 14, 17). The question of organizational rights and liabilities under international law is just one of several issues which will be examined by the High Court, and which has the potential to significantly impact or alter the course of this litigation. This Court denied Mr. Livelys Motion to Stay. (Endorsed Order, June 1, 2012).
40
42
SMUG purports to plead persecution under the Rome Statute of the International Criminal Court (ICC). (Dkt. 27, 3). 41 The relevant part of the Rome Statute provides: crime against humanity means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. Rome Statute, Art. 7(1) (emphasis added) (available at
http://untreaty.un.org/cod/icc/statute/romefra.htm, last visited June 20, 2012). Persecution is defined as the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity. Id., at Art. 7(2)(g). The ICC, responsible for enforcing the Rome Statute, has cautioned: Since article 7 pertains to international criminal law, its provisions, consistent with article 22, must be strictly construed, taking into account that crimes against humanity as defined in article 7 are among the most serious crimes of concern to the international community as a whole. 42
This discussion assumes, for the sake of argument, that the Rome Statute is universally recognized and thus an actionable international norm under the Alien Tort Statute. This is, in fact, not the case, as demonstrated in section III(A), supra. Rome Statute: Elements of Crimes, p. 5, Art. 7, Crimes Against Humanity, Introduction #1 (emphasis added) (published by the International Criminal Court and available at http://www.icccpi.int/NR/rdonlyres/9CAEE830-38CF-41D6-AB0B-68E5F9082543/0/Element_of_Crimes_English.pdf, last visited June 20, 2012).
42
41
43
By the plain terms of the Rome Statute, one cannot commit persecution in the abstract. Art. 7(1)(h). To be liable for persecution, the persecutor must also commit any act referred to in this paragraph or any crime within the jurisdiction of the Court. Id. (emphasis added). This is also made clear in the Elements of Crimes manual of the International Criminal Court, which provides six separate elements for the crime of Persecution, the fourth of which is that [t]he conduct was committed in connection with any act referred to in article 7, paragraph 1, of the Statute or any crime within the jurisdiction of the Court. Rome Statute: Elements of Crimes, p. 11, Art. 7(1)(h), Crime Against Humanity of Persecution: Elements. Thus, if it could state a claim for persecution against Mr. Lively, SMUG would have to allege not only that sexual minorities constituted a protected class and that Mr. Lively severely and intentionally deprived that protected class of fundamental rights, but also that he committed one of the other enumerated acts in Article 7(1), or one of the other three general crimes within the jurisdiction of the International Criminal Court (i.e., genocide, war crimes or military aggression). Id. SMUG clearly fails to make such allegations, nor could it do so in good faith. SMUG does not allege, for example, that Mr. Lively committed genocide or war crimes, nor that he tortured, murdered, enslaved, raped or imprisoned anyone. SMUG does allege that a handful of activists were arrested and quickly released (and that some of them obtained vindication and damages from Ugandan courts). SMUG also alleges that one activist, David Kato, was killed in his home, although it does not reveal that the confessed perpetrator was a homosexual prostitute, and that his confessed motive was a botched sex-for-money transaction. Be that as it may, in neither instance does SMUG allege that Mr. Lively himself committed these acts, nor that he encouraged or assisted the alleged perpetrators. SMUGs spurious aiding and abetting and conspiracy allegations can be fairly read, at most, to claim that Mr. Lively lobbied the Ugandan government to enact certain laws which SMUG 44
considers discriminatory. 43 Nothing in SMUGs Amended Complaint can be interpreted to allege that Mr. Lively conspired with or aided the perpetrators of the alleged acts of persecution. Accordingly, SMUG has failed to plead an essential element of persecution, and, therefore, its Amended Complaint should be dismissed. 44 D. SMUG CANNOT STATE A CLAIM FOR PERSECUTION BECAUSE MR. LIVELY IS NOT A STATE ACTOR.
In its First Claim for Relief (Persecution: Individual Responsibility), SMUG attempts to assert both a direct liability claim against Mr. Lively for allegedly committing persecution himself (dkt. 27, 237), as well as a secondary liability claim for aiding and abetting others to persecute. (Id. at 238). SMUGs direct liability claim is barred because Mr. Lively is a private citizen not a state actor (id. at 22-23), and thus he cannot commit persecution. 45 In Sosa v. Alvarez-Machain, 542 U.S. 692, 732 & n.20 (2004), the Supreme Court emphasized that the determination [of] whether a norm is sufficiently definite to support a cause of action [under the Alien Tort Statute] includes the related consideration [of] whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor. Id. (emphasis added). Pre- and post-Sosa courts have held that crimes against humanity are not actionable against non-state actors. The general rule is that international law only binds state actors. Estate of Rodriquez v. Drummond Co., Inc., 256 F. Supp. 2d 1250, 1260-61 (N.D. Ala. 2003). However, the Restatement
43
SMUGs aiding and abetting, conspiracy and joint criminal enterprise claims themselves fail to state causes of action, as demonstrated in sections V, VI and VII, respectively, infra.
SMUG also fails to state a claim for persecution under the Rome Statute for another, independent reason: SMUG has failed to allege persecution based upon one of the enumerated impermissible grounds in Article 7(1)(h), and SMUG cannot establish that the grounds which it has alleged are universally recognized as impermissible under international law, as required by that treaty. This fatal defect is examined fully in section III(B), supra. The insufficiency of SMUGs other claim, for aiding and abetting persecution, is demonstrated in section V, infra.
45
44
45
(Third) of Foreign Relations Law recognizes that, in certain limited circumstances, [i]ndividuals may be held liable for offenses against international law, such as piracy, war crimes, or genocide. Restatement (Third) of Foreign Relations Law II, Introductory Note (1987) (emphasis added). As such, there exists a handful of crimes to which the law of nations attributes individual responsibility. Kadic v. Karadzic, 70 F.3d 232, 240 (2d Cir. 1995) (quoting Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 795 (D.C. Cir. 1984) (EDWARDS, J. concurring)). [B]ut no court has found more in that handful than war crimes, crimes committed in pursuit of genocide, slave trading, aircraft hijacking, and piracy. Doe v. Islamic Salvation Front, 257 F. Supp. 2d 115, 120 (D.D.C. 2003) (emphasis added) (citing Kadic, 70 F.3d at 240). Thus, courts interpreting the [Alien Tort Statute] have found that certain forms of conduct piracy, the slave trade, slavery and forced labor, aircraft hijacking, genocide, and war crimes violate the law of nations whether undertaken by those acting under the auspices of a state or only as private individuals. Estate of Rodriquez, 256 F. Supp. 2d at 1260-61 (emphasis added) (allowing claims of extrajudicial killing to proceed against non-state actor under Alien Tort Statute only because killings were adequately alleged to be part of war crimes) (quoting Kadic, 70 F.3d at 239). In Kadic, the Second Circuit found that genocide and war crimes were within the handful of crimes actionable against non-state actors under the Alien Tort Statute, as were torture and summary execution when committed in the course of genocide or war crimes. 70 F.3d at 241-244. The Second Circuit permitted claims of torture and killing against a non-state actor, but only because they were adequately alleged to have been committed in the course of genocide or war crimes. Id. at 244. Other courts have routinely dismissed claims against non-state actors under the Alien Tort Statute which do not fall within the limited handful of [recognized] crimes, including, specifically, crimes against humanity. See e.g., Islamic Salvation Front, 257 F. Supp. 2d at 120 46
(granting summary judgment on claim for crimes against humanity under Alien Tort Statute, because only plaintiffs airplane hijacking claim can be found on that short list of international torts actionable against non-state actors); In re S. African Apartheid Litig., 617 F. Supp. 2d 228, 251-52 (S.D.N.Y. 2009) (dismissing direct liability claims under Alien Tort Statute, because [a]lthough the establishment of state-sponsored apartheid and the commission of inhumane acts needed to sustain such a system is indisputably a tort under customary international law, the international legal system has not thus far definitively established liability for non-state actors) (this Court declines to recognize a tort of apartheid by a non-state actor). In Beanal v. Freeport-McMoRan, Inc., the court dismissed an Alien Tort Statute claim for crimes against humanity brought against a private actor, concluding that [c]ertain conduct only violates the law of nations if committed by a state actor. 969 F. Supp. 362, 371 (E.D. La. 1997) aff'd, Beanal v. Freeport-McMoran, Inc., 197 F.3d 161 (5th Cir. 1999). [Plaintiff] must allege state action in order to state a claim under 1350 for non-genocide related human rights violations abuses. Id. at 373 (emphasis added). State action is required to state a claim for violation of the international law of human rights. Id. at 380 (emphasis added). The same outcome must obtain here. SMUG attempts to bring a direct liability claim for the crime against humanity of persecution against Mr. Lively, who SMUG concedes is a private citizen, not a state actor. (Dkt. 27, 22). Because neither crimes against humanity in general, nor persecution in particular, is on the short list of handful of crimes actionable against non-state actors, SMUGs direct liability claims against Mr. Lively should be dismissed. 46
Even if SMUG is able to show that some nations or some courts have recognized direct liability claims for persecution against non-state actors, in light of the authorities above SMUG certainly cannot meet its burden of showing that such causes of action are universally recognized in the international community. As such, the Court lacks subject-matter jurisdiction over SMUGs claim (see, section III, supra), which is another, independent reason requiring dismissal.
46
47
E.
SMUG HAS NOT ALLEGED THAT MR. COMMITTED ANY ACTS OF PERSECUTION.
LIVELY
HIMSELF
Finally, SMUGs direct liability claim of persecution against Mr. Lively fails for still another, more basic reason: SMUG has failed to allege that Mr. Lively has committed any acts of persecution himself. SMUGs allegations that Mr. Lively aided and abetted or conspired with others to persecute SMUG are relevant, if at all, only to those secondary liability claims. They do not support SMUGs direct liability claim. In Liu Bo Shan v. China Const. Bank Corp., 421 F. App'x 89 (2d Cir. 2011), the Second Circuit affirmed the dismissal of a direct liability claim of torture and inhuman treatment under the Alien Tort Statute. Id. at 92. Like SMUG does here, Plaintiff in Liu alleged that the police committed various acts of unlawful unrest, torture and inhuman treatment. Id. Also like SMUG, Plaintiff in Liu did not sue the police, but sued a private bank, and it alleged that the bank provided the police with the false information leading to his unlawful arrest and eventual torture. Id. Also like SMUG, Plaintiff in Liu alleged inhuman treatment only by the police, not by the Bank. Id. Said the Second Circuit: [l]ike the district court, we conclude that these allegations are insufficient to support a reasonable inference of direct liability by the Bank for conducttorture, cruel treatment, and prolonged arbitrary detentionthat the amended complaint repeatedly asserts was committed by the Chinese government police. Id. SMUG has sued Mr. Lively for persecution, but does not allege that he, himself, committed any of the eight acts of persecution alleged in its Amended Complaint. (See pp. 4-8, supra). SMUGs direct-liability claim of persecution against Mr. Lively therefore must fail. In sum, SMUG has failed to state a claim for persecution. Without a cognizable tort upon which to premise its first three Claims for Relief, SMUG has no cause of action, so those claims (Counts I, II and III) must be dismissed, with prejudice.
48
V.
SMUGS CLAIM FOR AIDING AND ABETTING PERSECUTION FAILS TO STATE A CLAIM BECAUSE PLAINTIFF HAS NOT ALLEGED THE REQUIRED ELEMENTS. In light of the foregoing arguments and authorities, SMUG may be tempted to abandon its
direct liability claim for persecution against Mr. Lively, and shift the focus to its secondary liability claim, stated in the same Count I. Here, SMUG purports to assert a claim for purposefully aid[ing], abet[ing], or otherwise assist[ing] in the commission or attempted commission of the crime [of persecution], including by providing the means for its commission. (Dkt. 27, 238). However, this claim fares no better than the direct liability claim, and it should also be dismissed, for two reasons: (A) SMUG has failed to allege any conduct that constitutes aiding and abetting persecution; and (B) SMUGs conclusory allegations fail to demonstrate the requisite intent. SMUGs allegations about Mr. Livelys speech (or alleged conduct) can be condensed into two points: (1) that he advocated for the criminalization of homosexual advocacy, and (2) that he conflated homosexual identity with a propensity to commit violent acts. (Dkt. 27, 6593). SMUGs claim suggests that engaging in the marketplace of ideas itself somehow constitutes the actus reus of aiding and abetting and manifests a purposeful mens rea. Using this false premise as a foundation, SMUG then summarily concludes that Mr. Lively has therefore aided and abetted the commission of persecution by third parties. (Id. at 238). However, this is a naked assertion devoid of further factual enhancement, which was expressly found insufficient in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557). Even if true, Mr. Livelys alleged statements are merely opinions he holds and expresses, not conduct furthering persecution or the manifestation of an intent to persecute. Twombly, as interpreted by Iqbal, is particularly pertinent to this case because plaintiffs in Twombly alleged a form of secondary liability (conspiracy) that the Supreme Court found
49
inadequate because the allegations were either conclusory or not plausible. Id. at 680. In Iqbal, the Supreme Court summarized this part of Twombly as follows: The Court held the plaintiffs' complaint deficient under Rule 8. In doing so it first noted that the plaintiffs' assertion of an unlawful agreement was a legal conclusion and, as such, was not entitled to the assumption of truth. . . . The Court next addressed the nub of the plaintiffs' complaintthe well-pleaded, nonconclusory factual allegation of parallel behaviorto determine whether it gave rise to a plausible suggestion of conspiracy. Acknowledging that parallel conduct was consistent with an unlawful agreement, the Court nevertheless concluded that it did not plausibly suggest an illicit accord because it was . . . compatible with . . . lawful, [] free-market behavior. Because the well-pleaded fact of parallel conduct, accepted as true, did not plausibly suggest an unlawful agreement, the Court held the plaintiffs' complaint must be dismissed. Id. (internal citations omitted) (emphasis added). Similarly, here SMUG alleges that Mr. Lively is part of a conspiracy and that he aided and abetted the perpetrators of the alleged persecution. Also like Twombly and Iqbal, but perhaps to an even greater degree, conclusory and implausible allegations are littered throughout SMUGs Amended Complaint, especially with regard to the claim of aiding and abetting persecution. Given this plethora of cardinal pleading sins, this claim should be dismissed. A. SMUG FAILS TO ALLEGE ANY CONDUCT THAT CONSTITUTES AIDING AND ABETTING PERSECUTION.
It is well settled that an international norm must be specific, universal, and obligatory, Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004). In addition, the standard for actus reus is practical assistance to the principal which has a substantial effect on the perpetration of the crime. Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 259 (2d Cir. 2009) (emphasis added); see also Liu Bo Shan v. China Const. Bank Corp., 421 F. App'x 89, 94 (2d Cir. 2011) (allegations failed to show practical assistance or substantial effect on the perpetration of the crime). Moreover, to show practical assistance and substantial effect on the commission of the
50
crime, the plaintiff must make detailed allegations. In re Chiquita Brands Int'l, Inc. Alien Tort Statute & S'holder Derivative Litig., 792 F. Supp. 2d 1301, 1347-48 (S.D. Fla. 2011). Here, SMUG not only fails to make detailed allegations, but also fails to set forth any factual allegations that show practical assistance or substantial effect on the perpetration of the eight alleged acts of persecution. The closest SMUG comes to showing any assistance to the other four members of the alleged conspiracy (but not to the actual perpetrators of the eight acts of persecution themselves) is the allegation that Mr. Lively shared with Ugandan government officials his views on how to counteract the promotion of homosexuality. (Dkt. 27, 77-79). But advocating and lobbying the government on a matter of policy is quintessential protected First Amendment activity, and can by no means constitute practical assistance in furtherance of a conspiracy to commit a crime. Nor does the passage (much less mere consideration) of legislation constitute a criminal act. Indeed, SMUG utterly fails to show any connection or interaction whatsoever between Mr. Lively and the alleged perpetrators of the eight acts of persecution themselves, much less actual, practical assistance in committing the alleged crimes. SMUG also alleges broadly that Mr. Lively provid[ed] the means for his alleged coconspirators to commit persecution. (Dkt. 27, 238). Setting aside the fact that the four coconspirators to whom Mr. Lively allegedly provided the means are not the same individuals who perpetrated the eight alleged acts of persecution, SMUG utterly fails to provide any detail concerning what means, beyond mere ideas, Mr. Lively supposedly provided. After all, SMUG has not suggested that Mr. Lively handed the hammer to Mr. Katos homosexual lover. Once again, then, this allegation is nothing but a naked assertion, and should not be countenanced by this Court. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).
51
Similarly, SMUGs allegations fail to demonstrate that Mr. Livelys speech (or alleged conduct) had a substantial effect on the alleged tort. 47 While SMUG vaguely attempts to connect Mr. Livelys speech to subsequent acts that allegedly constitute persecution (dkt. 27, 26-33), SMUG does not provide any detailed, factual allegations showing that Mr. Livelys speech actually caused such substantial effect. And although SMUG attempts to plead but for causation by conclusory allegations (id. at 5, 8), such an argument is foreclosed by the requirement that, to be actionable, assistance must be both practical and have a substantial effect on the perpetration of the crime, which is not this case. Liu Bo Shan v. China Const. Bank Corp., 421 F. App'x 89, 94 (2d Cir. 2011) (quoting Presbyterian Church, 582 F.3d at 258) (emphasis added). Given the absence of any detailed, factual allegations demonstrating that Mr. Livelys protected speech (or alleged conduct) practically assisted or had a substantial effect on the alleged persecution, the claim cannot stand. Claims for aiding and abetting crimes against humanity must fail unless supported by nonconclusory allegations. Abecassis v. Wyatt, 704 F. Supp. 2d 623, 655 (S.D. Tex. 2010). In Abecassis, plaintiffs brought claims under the Alien Tort Statute for aiding and abetting crimes against humanity. Id. at 635. Plaintiffs alleged that defendants knew that the kickbacks paid to Saddam Hussein through the Oil for Food Program were funding terrorist attacks in Israel. Id. The court dismissed the claims, finding that the underlying allegations were conclusory. Id. at 655. Furthermore, the court found that [t]he complaint does not come close to alleging facts, either direct or circumstantial, that would establish that any of the defendants intended to facilitate or encourage terrorist attacks in Israel. Id. (emphasis added).
Even if SMUG could show that Mr. Livelys speech had a substantial effect on his audience, which it cannot, SMUGs claim would nevertheless fail, because Mr. Livelys speech was wholly protected by the First Amendment. (See section II, supra).
47
52
SMUGs Amended Complaint suffers from the same fatal flaw. There are simply no facts, direct or circumstantial, tying Mr. Livelys speech (or alleged conduct) to the individuals who committed the eight alleged acts of persecution. Rather, SMUG alleges that Mr. Lively aided and abetted four other co-conspirators Mr. Langa, Mr. Ssempa, Mr. Buturo and Mr. Bahati simply by sharing his views with them on a matter of public concern. (Dkt. 27, 44). But even if this conclusory allegation were accepted as valid and true, it is undisputed that the eight alleged acts of persecution were not committed by any of these men but by others, whom SMUG has not alleged to have had any ties whatsoever to Mr. Lively. (See, pp. 4-8, supra). SMUGs sweeping generalizations that Mr. Lively deliberately invited, induced and encouraged . . . Ugandans . . . to fight back with severe repression, arrest, and . . . even violence devoid of specifics, is premised on an article by Mr. Lively, which SMUG cites. (Dkt. 27, 92-93 n.39). In that article, however, Mr. Lively never called on anyone to use force or violence, let alone imminent violence, against SMUG or anyone else. Scott Lively, Murdering Uganda, Defend the Family International (Feb. 5, 2011) (available at
http://www.defendthefamily.com/pfrc/newsarchives.php?id=5422609, last visited June 21, 2012). In fact, in that very article incorporated in SMUGs Amended Complaint, Mr. Lively strongly condemned the murder of David Kato, calling it a horrific crime. Id. Additionally, Mr. Lively also pointed out that, contrary to the false narrative fostered by SMUG and its allies, the truth is that Mr. Kato was not murdered because of anything Mr. Lively or other advocates might have said, but by a live-in male prostitute . . . [who] murdered Kato for failing to pay him as promised. Id. Nowhere in this article does Mr. Lively call for or condone violence. Id. The murder mentioned in the title of his article is what Mr. Lively described as the metaphysical murder of a God-fearing nation by those who oppose the rule of law. Id. Thus, SMUGs own evidence gives the lie to its claim. 53
Moreover, moral support cannot constitute aiding and abetting. Liu Bo Shan v. China Const. Bank Corp., 421 F. App'x 89, 94 (2nd Cir. 2011) (holding that allegations of encouragement and support do not amount to practical assistance and substantial effect); Doe v. Nestle, S.A., 748 F. Supp. 2d 1057, 1105 (C.D. Cal. 2010) ([A]iding and abetting by way of moral support and tacit approval and encouragement is a rare breed (and, in fact, a nonexistent breed for purposes of the Alien Tort Statute)) (emphasis added). As the court in Nestle observed, although the phrases moral support or tacit encouragement and approval are often quoted as part of the general aiding and abetting legal standard, [] there are simply no holdings that apply that portion of the standard. Id. at 1108 (emphasis added). The court further noted that moral support is far too uncertain and inchoate a rule to meet Sosas standard of specificity and universal acceptance among civilized nations to support a claim under the Alien Tort Statute. Id. (citation omitted) (quoting Sosa, 542 U.S. at 732, 738). The characterizations of Mr. Livelys protected speech in SMUGs Amended Complaint, amount to nothing more than a claim that Mr. Lively provided moral support and tacit encouragement to certain Ugandans. 48 (Dkt. 27, 93). Even if true, no court has recognized such allegations as constituting aiding and abetting. Assistance that is far more direct and concrete has been found insufficient to establish actus reus. [M]erely supplying a violator of the law of nations with funds as part of a commercial transaction, without more, cannot constitute aiding and abetting a violation of international law. Nestle, 748 F. Supp. 2d at 1099 (quoting In re S. African Apartheid Litig., 617 F.Supp.2d 228, 269 (S.D.N.Y. 2009)). A fortiori, merely exercising ones First Amendment rights by expressing opinions to government officials cannot constitute aiding and abetting. See Aziz v. Alcolac, Inc., 658 F.3d 388, 401 (4th Cir. 2011); Nestle, 748 F.
48
Unlike plaintiffs allegations in Nestle, SMUGs allegations cannot be understood to state that Mr. Lively approved of the alleged persecution, as explained supra.
54
Supp. 2d at 1099; In re S. African Apartheid, 617 F. Supp. 2d at 257 (It is (or should be) undisputed that simply doing business with a state or individual who violates the law of nations is insufficient to create liability under customary international law. International law does not impose liability for declining to boycott a pariah state or to shun a war criminal.). B. SMUGS CONCLUSORY ALLEGATIONS FAIL TO PLEAD THE REQUISITE INTENT.
Not only has SMUG failed to allege that Mr. Lively committed any specific act of aiding and abetting, but it has also failed to set forth any non-conclusory allegations that Mr. Lively acted with the purpose of aiding the perpetrators to persecute specific victims. Without meeting these basic requirements, the aiding and abetting claim fails on the mens rea ground alone. Adhering to Sosas guiding principle, the mens rea standard for secondary liability, including aiding and abetting, requires a demonstration of purpose. Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 255 (2nd Cir. 2009) (The decisive issue in this case is whether accessorial liability can be imposed absent a showing of purpose, a question the court emphatically answered in the negative); Aziz v. Alcolac, Inc., 658 F.3d 388, 400-01 (4th Cir. 2011) (adopting the purpose mens rea standard and noting that, although not dispositive, the Supreme Court chose not to disturb the Second Circuit's specific intent analysis [in Presbyterian Church] when it declined to grant certiorari); Nestle, 748 F. Supp. 2d at 1110-11 (citing Presbyterian Church and other sources in adopting the purpose mens rea standard); Abecassis v. Wyatt, 704 F. Supp. 2d 623, 655 (S.D. Tex. 2010) (applying Presbyterian Church) ([T]he [Alien Tort Statute] will only confer jurisdiction if there are allegations of purposefulness.). 49
49
Even if the Court were to apply the minority standard and assume that the mens rea element is satisfied on the basis of mere knowledge of the persecution, SMUGs allegations nevertheless fail as a matter of law, because they do not show that Mr. Lively knew that his speech (or alleged conduct) would provide practical assistance to, or substantially affect, the perpetrators of the alleged persecution.
55
To adequately allege secondary liability for crimes against humanity, a plaintiff must allege that the defendant actually intended for specific harm to occur to specific victims. In re Chiquita Brands Int'l, Inc. Alien Tort Statute & S'holder Derivative Litig., 792 F. Supp. 2d 1301, 1349 (S.D. Fla. 2011) (With respect to [defendant]s secondary liability for the [perpetrator]'s crimes against humanity, Plaintiffs must allege that [defendant] not only intended for the [perpetrator] to torture and kill, but that [defendant] intended for the [perpetrator] to torture and kill civilians); Nestle, 748 F. Supp. 2d at 1111 (Plaintiffs' allegations fail to raise a plausible inference that Defendants knew or should have known that the general provision of money, training, [and] tools . . . helped to further the specific wrongful acts committed by the Ivorian farmers) (emphasis added). In addition to showing particularized intent, a plaintiff must use nonconclusory allegations to show that intent. Abecassis, 704 F. Supp. 2d at 655. In Liu Bo Shan v. China Construction Bank Corp., plaintiff brought claims under the Alien Tort Statute against defendant for aiding and abetting (1) torture, (2) cruel, inhumane, and degrading treatment, and (3) prolonged arbitrary detention, by alleging that the defendant bank had aided the police in committing these torts. Liu Bo Shan v. China Const. Bank Corp., 421 Fed. App'x 89, 90 (2d Cir. 2011). Specifically, plaintiff allege[d] that the Bank falsified evidence and induced the police to arrest [plaintiff] in retaliation for his release of [an] audit [of the Bank]. Id. at 94. The Second Circuit nevertheless upheld the dismissal of the complaint: Notwithstanding Liu's assertions that the Chinese government exercised a high degree of control over the Bank and shared the goal of silencing Liu, . . . the amended complaint fails plausibly to allege that the Bank acted with the purpose that Liu be subjected to torture, cruel treatment, or prolonged arbitrary detention by the police. . . . Although intent must often be demonstrated by the circumstances, Liu's allegations do not support a reasonable inference that the Bank acted with the purpose to advance violations of customary international law . . . . Id. (emphasis added) (internal citations omitted) (quoting Presbyterian Church, 582 F.3d at 264).
56
Much like the plaintiff in Liu, SMUGs allegations imply that Mr. Livelys pure speech somehow induced the Ugandan perpetrators to persecute SMUG. (Dkt. 27, 92-93). However, even with the allegation of a high degree of control over the perpetrators, something SMUG failed to allege, the Liu plaintiff failed to warrant a plausible inference that the defendant acted with the purpose to advance violations of customary international law. Liu, 421 Fed. Appx at 94. SMUGs reliance on vague and conclusory circumstantial allegations, premised on nothing more than protected speech, are similarly unavailing here. Even if Mr. Lively had encouraged a course of action generally, the failure to show an intent that the specific acts of persecution be committed against specific victims is fatal to SMUGs aiding and abetting claim. It is one thing to allege purpose in a formulaic allegation with a pro forma label; it is quite another to actually demonstrate purpose by detailed, non-conclusory allegations. See Iqbal, 556 U.S. at 678 ([L]abels and conclusions or a formulaic recitation of the elements of a cause of action will not do) (quoting Twombly, 550 U.S. at 555) (internal quotation marks omitted). SMUGs naked allegations of purposive intent fail to include the detailed, non-conclusory elements necessary to support its claim. Accordingly, the claim for aiding and abetting persecution should be dismissed. VI. SMUGS CLAIM FOR CONSPIRACY TO PERSECUTE FAILS BOTH BECAUSE THE COURT LACKS SUBJECT-MATTER JURISDICTION AND BECAUSE SMUG FAILS TO STATE A CAUSE OF ACTION. In its Third Claim for Relief, SMUG purports to assert a claim for Crime Against Humanity of Persecution: Conspiracy. (Dkt. 27, 246-250). This claim should be dismissed, both because the Court lacks subject-matter jurisdiction, and because it fails to state a cause of action against Mr. Lively.
57
A.
THE COURT DOES NOT HAVE SUBJECT-MATTER JURISDICTION OVER SMUGS CONSPIRACY CLAIM BECAUSE CONSPIRACY LIABILITY IS NOT UNIVERSALLY RECOGNIZED AND CLEARLY DEFINED UNDER INTERNATIONAL LAW.
As demonstrated in section III, supra, alleged violations of international norms that are not universally accepted and clearly defined do not come within the reach of the Alien Tort Statute, and thus are outside the subject-matter jurisdiction of this Court. Conspiracy is such a violation, and, therefore, SMUGs claim must be dismissed. Since the Alien Tort Statute is strictly a jurisdictional statute creating no new causes of action, Sosa, 542 U.S. at 724, courts must look to international law to determine not only the existence of liability for the challenged conduct, id. at 733 (Alvarez's detention claim must be gauged against the current state of international law), but also the scope of that liability. Id. at 732 n.20 (A related consideration is whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual) (emphasis added). To find [Alien Tort Statute] jurisdiction over an alleged secondary tort, there must be a sufficient and sufficiently definite international consensus supporting not only the underlying tort but also the form of secondary liability for that tort. Abecassis v. Wyatt, 704 F. Supp. 2d 623, 654 (S.D. Tex. 2010) (applying Sosa) (emphasis added). Because it knows that international law does not recognize conspiracy claims, SMUG may entreat this Court to look to United States federal common law, which is much more hospitable to such claims. 50 However, numerous federal courts applying Sosa have properly rejected similar requests and looked only to international law, as Sosa requires. See e.g., In re S. African
Under federal common law, a defendant who does not directly commit a substantive offense may nevertheless be liable if the commission of the offense by a co-conspirator in furtherance of the conspiracy was reasonably foreseeable to the defendant as a consequence of their criminal agreement. United States v. Bruno, 383 F.3d 65, 89 (2d Cir. 2004) (citing Pinkerton v. United States, 328 U.S. 640, 646-48 (1946)).
50
58
Apartheid Litig., 617 F. Supp. 2d at 263 (I again look to customary international law as the source of relevant authority to determine whether conspiratorial liability may be asserted under the Alien Tort Statute); Presbyterian Church of Sudan v. Talisman Energy, Inc., 453 F. Supp. 2d 633, 665 n.64 (S.D.N.Y. 2006) (this Court continues to believe that international law must supply the substantive law for plaintiffs [conspiracy] claims) (rejecting request to apply Pinkerton), aff'd, 582 F.3d 244, 260 (2d Cir. 2009) (As a matter of first principles, we look to international law to derive the elements for any such cause of action [for conspiracy]); Abecassis, 704 F. Supp. 2d at 654 (International law, according to [Sosa], also defines who may be sued for violating that norm. There is no reason to believe that international law determines whether private as well as state actors can be sued but not whether secondary as well as primary actors can be sued.). Fidelity to Supreme Court precedent necessitates that this Court likewise look exclusively to international law to determine whether SMUG can assert a claim of conspiracy to persecute under the Alien Tort Statute. Fortunately, the Supreme Court has made this Courts task of divining the contours of international law on conspiratorial liability relatively easy. In Hamdan v. Rumsfeld, 548 U.S. 557 (2006), the Supreme Court reviewed various sources of international law and held that: the only conspiracy crimes that have been recognized by international war crimes tribunals (whose jurisdiction often extends beyond war crimes proper to crimes against humanity and crimes against the peace) are conspiracy to commit genocide and common plan to wage aggressive war Id. at 610 (emphasis added). The Supreme Court quoted with approval other international jurists who made a persuasive argument that conspiracy in the truest sense is not known to international law. Id. at 611 (emphasis added) (internal quotes omitted). Finally, the Supreme Court quoted various United Nations War Crimes Commissions, which observ[ed] that, although a few individuals were charged with conspiracy under European domestic criminal codes
59
following World War II, the United States Military Tribunals established at that time did not recognise as a separate offence conspiracy to commit war crimes or crimes against humanity. Id. at 611 n.40 (emphasis added) (internal quotes omitted). As with all Supreme Court precedent, this Court must [] apply the Supreme Court's assessment of the law of nations. In re S. African Apartheid Litig., 617 F. Supp. 2d at 263. Thus, even though Hamdan was not decided under the Alien Tort Statute, the Supreme Courts determination that international law forecloses conspiratorial liability for all but two offenses, neither of which is claimed here, is binding. Id. Applying Hamdan specifically to conspiracy claims brought under the Alien Tort Statute, the court in S. African Apartheid held: Jurists from the civil law tradition have long resisted the application of conspiracy to crimes under the law of nations, as conspiracy is an Anglo American legal concept. Importantly, the Supreme Court recently stated in Hamdan v. Rumsfeld that the law of war provides liability only for conspiracy to commit genocide and common plan to wage aggressive war. While Hamdan did not address the [Alien Tort Statute], this Court must nevertheless apply the Supreme Court's assessment of the law of nations. Sosa requires that this Court recognize only forms of liability that have been universally accepted by the community of developed nations. Conspiracy does not meet this standard. Therefore, this Court declines to recognize conspiracy as a distinct tort to be applied pursuant to [Alien Tort Statute] jurisdiction. Id. at 263 (emphasis added). The South African Apartheid court is by no means unique in its application of the Hamdan - Sosa principle to reject conspiratorial liability for alleged human rights abuses under the Alien Tort Statute. See e.g., Presbyterian Church of Sudan v. Talisman Energy, Inc., 453 F. Supp. 2d at 664-65 (As of today, therefore, liability under the ATS for participation in a conspiracy may only attach where the goal of the conspiracy was either to commit genocide or to commit aggressive war . As described above, [plaintiffs] contend that [defendant] joined a conspiracy to commit a crime against humanity . As a result, the defendants motion for summary judgment on the conspiracy claim is granted) (emphasis added) (applying Hamdan), affd, 582 60
F.3d 244, 260 (2d Cir. 2009) (plaintiffs have not established that international law universally recognizes a doctrine of conspiratorial liability) (internal quotes and alterations omitted). Here, SMUG seeks to assert a claim of conspiracy not for the two torts allowed under Hamdan, but for a crime against humanity, which was specifically dismissed in South African Apartheid and Presbyterian Church of Sudan. SMUGs claim should meet the same fate. 51 B. SMUGS CLAIM FOR CONSPIRACY TO PERSECUTE FAILS TO STATE A CAUSE OF ACTION BECAUSE SMUG FAILS TO ALLEGE THE REQUISITE MENS REA.
Even if the Court could exercise jurisdiction over SMUGs conspiracy to persecute claim, which it cannot, the Court would have to dismiss it because it fails to state a cause of action. SMUG has not alleged the mens rea required to support a conspiracy claim. A conspiracy claim requires the same proof of mens rea as an aiding and abetting claim. Liu Bo Shan v. China Const. Bank Corp., 421 Fed. App'x 89, 93-94 & n.6 (2d Cir. 2011) (emphasis added) (Assuming, without deciding, that [plaintiff] might assert a claim under the [Alien Tort Statute] for conspiracy, and affirming dismissal of such claim for failure to plead sufficient facts to infer requisite mens rea) (citing Presbyterian Church, 582 F.3d at 260). As demonstrated in section V, supra, SMUG has failed to plead sufficient facts from which the requisite mens rea could be inferred, either for aiding or abetting or for conspiracy. SMUG does not allege that Mr. Lively conspired with the actual perpetrators of the eight alleged acts of persecution, that is, the police who allegedly made unlawful arrests, the tabloids who
SMUG will undoubtedly point to Cabello v. Fernandez-Larios, 402 F.3d 1148 (11th Cir. 2005) (per curiam), where the Eleventh Circuit recognized conspiracy liability under the Alien Tort Statute for a number of violations of international law including crimes against humanity. Id. at 1159. However, Cabello was decided before Hamdan. Moreover, the Eleventh Circuit ran afoul of the Supreme Courts instruction in Sosa, and looked to domestic rather than international law to determine whether conspiracy liability exists. Id. For these reasons the Second Circuit expressly rejected Cabello, agreeing instead with the lower court in Presbyterian Church of Sudan, that Sosa required applying international law. Presbyterian Church of Sudan, 582 F.3d at 260 n.11 (affirming Presbyterian Church, 453 F. Supp. 2d at 665 n.64) (the Eleventh Circuit erred by drawing on domestic law, and not international law). This court should likewise reject Cabello, and follow the Supreme Courts clear teaching in Hamdan and Sosa.
51
61
published incitements to violence, or the homosexual prostitute who confessed to killing David Kato. The facts alleged by SMUG demonstrate that Mr. Livelys so-called conspiracy with two members of the Ugandan government and two private citizens was, in reality, protected, nonviolent political speech. Accordingly, SMUGs conspiracy to persecute claim fails to state a cause of action and should be dismissed. VII. SMUGS CLAIM FOR JOINT CRIMINAL ENTERPRISE SHOULD BE DISMISSED FOR LACK OF SUBJECT-MATTER JURISDICTION AND FAILURE TO STATE A CAUSE OF ACTION. In its Second Claim for Relief, SMUG attempts to state a claim against Mr. Lively for participating in a Joint Criminal Enterprise to commit persecution. (Dkt. 27, 240-245). This claim also fails. The Supreme Court has observed that one court, [t]he International Criminal Tribunal for the former Yugoslavia (ICTY), drawing on the Nuremberg precedents, has adopted a joint criminal enterprise theory of liability, but that is a species of liability for the substantive offense (akin to aiding and abetting), not a crime on its own. Hamdan v. Rumsfeld, 548 U.S. 557, 611, n.40 (2006) (emphasis added) (citing Prosecutor v. Tadc, Judgment, Case No. IT94 1A (ICTY App. Chamber, July 15, 1999)). Because it lacks universal recognition in international courts, the theory of joint criminal enterprise has been dismissed, along with conspiracy claims, in Alien Tort Statute cases. See e.g., Presbyterian Church Of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 260 (2d Cir. 2009) (affirming dismissal of joint criminal enterprise theory along with conspiracy claims because plaintiff had failed to establish universal recognition, and, in any event, had failed to establish the requisite mens rea); In re S. African Apartheid Litig., 617 F. Supp. 2d 228, 263 (S.D.N.Y. 2009) (noting that the ICTY recognized Joint Criminal Enterprise as a crime derived from customary international law and comparable to 62
conspiracy, [h]owever, the ICC has repeatedly declined to apply a broad notion of conspiratorial liability under customary international law). Because it lacks universal recognition and is not clearly defined, this Court should also dismiss for lack of subject matter jurisdiction SMUGs claim for joint criminal enterprise. (See section III, supra). To the extent joint criminal enterprise is universally recognized and clearly defined, which it is not, it would require the same proof of mens rea as [SMUGs] claims for aiding and abetting. Presbyterian Church, 582 F.3d at 260 (emphasis added). As demonstrated in section V, supra, SMUG has not adequately pled the requisite mens rea for aiding and abetting persecution or joint criminal enterprise. SMUGs factual allegations reveal, at most, that Mr. Lively engaged in non-violent political discourse and lobbied a government to enact legislation which SMUG does not like. SMUG does not allege that Mr. Lively was in any joint enterprise with the actual perpetrators of the eight acts of alleged persecution, nor could it do so in good faith. SMUG only alleges that Mr. Lively was in a joint enterprise with the two members of the Ugandan government he was advising on legislation, and two other private Ugandan citizens. Mr. Livelys (and other citizens) lobbying of legislators is not a criminal enterprise, but a right guaranteed by the First Amendment (at least for Mr. Lively, who is a United States citizen). Accordingly, SMUGs claim for joint criminal enterprise must meet the same fate as its claim for aiding and abetting. Presbyterian Church, 582 F.3d at 260 (affirming dismissal of joint criminal enterprise theory for failure to satisfy same mens rea requirement as aiding and abetting); Shan v. China Const. Bank Corp., 09 CIV. 8566 (DLC), 2010 WL 2595095 (S.D.N.Y. June 28, 2010), aff'd sub nom. Liu Bo Shan v. China Const. Bank Corp., 421 Fed. App'x 89 (2d Cir. 2011) (same).
63
VIII. SMUGS STATE LAW CLAIMS ARE TIME-BARRED AND FAIL TO STATE COGNIZABLE CLAIMS FOR RELIEF. SMUG seeks to assert two brand new claims in its Amended Complaint, one for Civil Conspiracy (Fourth Claim for Relief) (dkt. 27, 251-256), and one for Negligence. (Id. at 257-262). SMUG purports to bring these claims under Massachusetts state law (id. at 4), and invokes both diversity and supplemental jurisdiction. (Id. at 15). 52 SMUGs state law claims must be dismissed because: (A) they are time-barred, (B) they are not viable under Uganda law, and (C) they fail to state claims for relief under Massachusetts law. A. SMUGS STATE LAW CLAIMS ARE TIME-BARRED.
When facing a claim that does not arise under the Constitution or the laws of the United States, a federal court must apply the substantive law of the forum in which it sits, including that state's conflict-of-laws provisions. Dykes v. DePuy, Inc., 140 F.3d 31, 39 (1st Cir. 1998). Under Massachusetts conflict-of-laws rules, the Massachusetts statute of limitations is applied whenever it would bar the claims in suit, even if the claims themselves are governed by the laws of another state. Shamrock Realty Co., Inc. v. O'Brien, 72 Mass. App. Ct. 251, 256 (2008) (The forum will apply its own statute of limitations barring the claim) (emphasis added) (holding that shorter Massachusetts limitations period must be applied to bar claims brought in Massachusetts that were otherwise governed by Rhode Island law) (quoting Restatement (Second) of Conflict of Laws 142(1) (1988 Revision)). 53
Since the Court has no subject-matter jurisdiction over SMUGs federal Alien Tort Statute claims (see section III, supra, and section XI, infra), there can be no supplemental jurisdiction over state law claims. 28 U.S.C. 1367(a); In re Nifedipine Antitrust Litig., 335 F. Supp. 2d 6, 19 (D.D.C. 2004) (if the underlying [federal question] claim is dismissed on jurisdictional grounds, then the Court does not have available to it the option of maintaining supplemental jurisdiction over pendant state law claims). Incidentally, the limitations period for tort actions involving personal injuries under Uganda law is the same as in Massachusetts (three years). Uganda Limitations Act of 1959, Chapter 80, Section 3, Subsection 1 (available at http://www.ulii.org/ug/legislation/consolidated-act/80, last visited August 8, 2012).
53
52
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1.
SMUGs Civil Conspiracy Claim is Time-Barred.
Under Massachusetts law, civil conspiracy [is] subject to the three-year limitations period. Pagliuca v. City of Boston, 35 Mass. App. Ct. 820, 823 (1994) (citing Mass. Gen. Laws Ann. ch. 260, 2A (West)). The three-year limitations period begins to run when plaintiffs are aware of an overt violation. Nieves v. McSweeney, 9905457J, 2001 WL 1470497, *3 (Mass. Super. Oct. 3, 2001) aff'd, 60 Mass. App. Ct. 1107 (2003). [T]he injury and the damage alleged in the tort of civil conspiracy flow from the first overt act. (Id.) (emphasis added). Accordingly, a civil conspiracy claim accrues on the date of the first allegedly wrongful act. Lamoureux v. Smith, 07953B, 2007 WL 4633272, *2 (Mass. Super. Nov. 5, 2007) (emphasis added). Here, SMUG alleges that Mr. Lively has engaged in a decade-long campaign, and that he has worked and schemed with others in Uganda for at least the past ten years. (Dkt. 27, 1, 25, 46). The first allegedly wrongful act supposedly took place in 2002, when Mr. Lively visited Uganda and delivered several public speeches on homosexuality that SMUG does not like. (Id. at 26, 47-52). SMUG became aware of this in 2002, because Mr. Livelys visit and speeches were very public and received substantial media attention. (Id. at 26). 54 Because SMUG did not file this action until a decade later, on March 14, 2012 (dkt. 1), SMUG missed the limitations period by more than seven (7) years, and its civil conspiracy claim is time barred.
54
Any claim by SMUG that the limitations period should be tolled on fraudulent concealment or other grounds would be absurd. SMUG readily admits, repeatedly throughout the Amended Complaint, that Mr. Livelys advocacy in Uganda was done in public, involved large public audiences, and often times received great media attention. (E.g., dkt. 27, 26, 47-52, 75-84). SMUG alleges that Mr. Livelys supposedly tortious speeches and activities were publically promote[d] and advertised on the Internet and elsewhere. (Id. at 76). SMUG alleges that its own employees and members were mistreated by police and other Ugandan actors in 2005, 2007 and 2008, and that it had to come to their assistance at those times. (Id. at 186-214). Accordingly, SMUGs own Amended Complaint precludes any argument that SMUG did not or could not know of the alleged wrongs sufficiently early to bring a timely suit.
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SMUG may attempt to breathe new life into its untimely and hastily-minted civil conspiracy claim, with a continuing conspiracy theory, under which SMUG would seek to hold Mr. Lively liable for the last (not first) overt act committed by his alleged co-conspirators. However, the First Circuit has explicitly repudiated the notion that the statute of limitations for civil conspiracy should run from the date of the last overt act. Nieves v. McSweeney, 241 F.3d 46, 51 (1st Cir. 2001). Injury and damage in a civil conspiracy action flow from the overt acts, not from the mere continuance of a conspiracy. Kadar Corp. v. Milbury, 549 F.2d 230, 234 (1st Cir. 1977) (emphasis added). See also, Nieves, 2001 WL 1470497 at *3 (limitations period in the tort of civil conspiracy flow[s] from the first overt act, not from the mere continuation of the conspiracy) (emphasis added); Lamoureux, 2007 WL 4633272 at *2 (another wrongful act in that same conspiracy does not reset the time period during which a plaintiff may file suit) (emphasis added). Moreover, the First Circuit has categorically barred attempts to extend the limitations period against one conspirator based on the subsequent acts of other co-conspirators: Plaintiffs present the theory that a cause of action for civil conspiracy accrues only on the date of the last overt act committed by anyone in furtherance of the conspiracy. They rely upon the purported overt acts of other co-conspirators in 1973-75 to hold open against [defendants] a conspiracy cause of action that would embrace, inter alia, the 1971-72 acts. This proposition is incorrect. [D]efendants cannot be held liable for acts allegedly committed in 1971 and 1972. As for the post-1972 period, no overt acts specifically implicating these defendants are alleged. Kadar, 549 F.2d at 235 (emphasis added) (internal alterations, quotes and citations omitted). As a result, plaintiff must allege and prove that each defendant to be charged committed an action in furtherance of the conspiracy within the limitation period. Gual Morales v. Hernandez Vega, 579 F.2d 677, 681 (1st Cir. 1978) (emphasis added).
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Accordingly, even if the Court were to adopt a last (rather than first) overt act theory, which it should not do, SMUG could still only rely upon Mr. Livelys alleged conduct, and not any of his co-conspirators. Id. SMUGs civil conspiracy claim would therefore fail, because it has not alleged any wrongful act by Mr. Lively within the limitations period (that is, after March 14, 2009). SMUG alleges that Mr. Livelys last visit to Uganda, and the so-called 2009 Anti-Gay Conference, ended on March 7, 2009. (Dkt. 27, 75). The conference that lies at the very heart of SMUGs Amended Complaint is therefore outside the limitations period. SMUG does not allege that Mr. Lively ever returned to Uganda. The only five (5) post-2009 actions SMUG alleges of Mr. Lively are that: (1) Mr. Lively gave an interview in North America on April 17, 2012, in which he
discussed his activities during the 2002 visits and the 2009 visit to Uganda (dkt. 27, 56, 85 & n.15, n.33) (emphasis added); (2) Mr. Lively gave speeches to audiences in Moldova, and engaged in advocacy
on homosexual issues in Moldova, Latvia, Russia [and] Lithuania in 2011 (id. at 61-64) (emphasis added); (3) Mr. Lively issued a press statement in 2010 discussing his 2009 efforts and
teachings in Uganda (id. at 66) (emphasis added); (4) Mr. Lively stated in a 2012 interview that he review[ed] and comment[ed] upon
the draft of the homosexuality bill considered by the Ugandan Parliament, before it was introduced in early 2009 (id. at 86-87) (emphasis added); and (5) Mr. Lively wrote an Internet blog article about Uganda in February 2011, the
same article in which he called Mr. Katos murder a horrific crime. (Id. at 92 & fn.39). None of these actions are actionable. They are protected, non-violent political speech. Post-limitations discussion of pre-limitations conduct cannot possibly bring the latter within the 67
former. SMUG does not purport to have operations in former Soviet countries, nor does it purport to represent anyone outside Uganda. Commenting upon the draft of a bill as part of an open political process (even if it occurred during the limitations period, which, apparently it did not) is core First Amendment speech. It would not be actionable conspiracy even if the bill had passed, and much less so since the bill never passed and is not expected to ever pass. Because SMUG does not allege any actionable conduct by Mr. Lively after March 14, 2009, and because SMUG waited over 10 years to file this lawsuit after it became aware of Mr. Livelys first allegedly wrongful act, SMUGs civil conspiracy claim is time-bared. The Court should dismiss it with prejudice. 2. SMUGs Negligence Claim is Time-Barred.
SMUGs negligence claim fares no better. The Massachusetts limitations period for negligence actions is also three years. Mass. Gen. Laws Ann. ch. 260, 2A (West). The statutory period begins to run[] when the plaintiff knows or reasonably should have known that it sustained appreciable harm as a result of the defendant's negligence. Int'l Mobiles Corp. v. Corroon & Black/Fairfield & Ellis, Inc., 29 Mass. App. Ct. 215, 218 (1990). SMUG alleges that, as a result of the virulently hostile environment negligently created by Mr. Livelys speech (dkt. 27, 258), its own employees and members were mistreated (or persecuted) by police and other Ugandan actors in 2005, 2007 and 2008. (Id. at 186-214). SMUG claims that it suffered harm at those times, by having to divert resources to assist its employees and members. (Id. at 189, 194, 208, 213, 214). But SMUG did not file this action until March 14, 2012. (Dkt. 1). And, as demonstrated in the preceding section, SMUG has not alleged any actionable, non-protected speech or conduct of Mr. Lively within the limitations period. SMUGs negligence claim is therefore time-barred and should be dismissed.
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B.
SMUGS STATE LAW CLAIMS FAIL UNDER UGANDA LAW.
Even if SMUGs civil conspiracy and negligence claims were not time-barred, and they are, they should still be dismissed because they are not viable under Ugandan law. Massachusetts has adopted a functional choice-of-law approach [which] is explicitly guided by the Restatement (Second) of Conflict of Laws (1971). Clarendon Nat. Ins. Co. v. Arbella Mut. Ins. Co., 60 Mass. App. Ct. 492, 495-96 (2004). That Restatement, in turn, provides that: In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in 6 to the occurrence and the parties, in which event the local law of the other state will be applied. Restatement (Second) of Conflict of Laws 146 (1971) (emphasis added). Here, all of the injuries alleged by SMUG occurred in Uganda. SMUG cannot show that Massachusetts has a more significant relationship to those alleged injuries and the parties, because: (a) all of the eight alleged acts of persecution took place, if at all, in Uganda; (b) SMUG, its employees, its constituent member organizations and the LGBTI community it purports to represent are all in Uganda; (c) any speech or conduct by Mr. Lively of which SMUG complains took place in Uganda; (d) all four of Mr. Livelys alleged co-conspirators are in Uganda; (e) all of the alleged perpetrators of the eight acts of persecution are in Uganda; and (f) by its own admission, SMUG has received justice in Uganda courts and under Ugandan law. Accordingly, SMUGs civil conspiracy and negligence claims are governed by Uganda law. While Uganda law recognizes criminal conspiracies, including conspiracy to commit a felony, conspiracy to commit a misdemeanor, and conspiracy to commit various other crimes, 55 Uganda law does not recognize civil conspiracy as a cause of action. It is difficult for Mr.
Uganda Penal Code Act of 1950, Chapter 120, Sections 390, 391 and 392 (available at http://www.ulii.org/ug/legislation/consolidated-act/120, last visited August 8, 2012).
55
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Lively to demonstrate a negative, but the burden here is on SMUG, the proponent of the cause of action, to demonstrate that it exists under Uganda law. SMUG cannot do so. As for negligence, while Uganda law may recognize traditional negligence as a cause of action, there is no indication that it recognizes the novel duty of care principles proposed by SMUG i.e., that a duty to act or warn can somehow spring, not out of a hazardous condition or product, but out of a virulently hostile environment created through speech and advocacy. There is also no indication that Uganda recognizes any duty of care towards one who advocates or engages in an illegal act. As SMUG alleges, homosexual conduct is unlawful in Uganda. It was unlawful long before Mr. Livelys first visit to Uganda in 2002, so SMUG cannot blame Mr. Lively for that fact. As the proponent of unique and novel causes of action, SMUG cannot demonstrate that its theories are actionable under Uganda law. SMUGs civil conspiracy and negligence claims should be dismissed. C. SMUG FAILS TO STATE A CLAIM FOR CIVIL CONSPIRACY OR NEGLIGENCE UNDER MASSACHUSETTS LAW.
The same result obtains if the Court decides to apply Massachusetts instead of Uganda law. There is no such thing as a duty of care arising out of a virulently hostile environment (dkt. 27, 258), in Massachusetts (or any other State of the Union), and certainly not when the alleged hostile environment was created through the civil, peaceful expression of political speech and ideas on a matter of public concern. SMUGs cause of action is a brazen attempt to punish Mr. Lively for ideas that SMUG finds offensive. As demonstrated in section II(C), supra, unless Mr. Lively incited someone to imminent violence which SMUG does not and cannot allege he is immune from tort liability in Massachusetts and everywhere else. Speech likely to cause imminent violence is actionable. Speech likely to cause a virulently hostile environment is not.
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As for civil conspiracy, SMUG apparently attempts to state a claim for coercive type conspiracy, Aetna Cas. Sur. Co. v. P & B Autobody, 43 F.3d 1546, 1563 (1st Cir. 1994), which is sometimes called true conspiracy. Massachusetts Laborers' Health & Welfare Fund v. Philip Morris, Inc., 62 F. Supp. 2d 236, 244 (D. Mass. 1999). This is a rare and very limited cause of action in Massachusetts. Id. (quoting Aetna, 43 F.3d at 1563) (internal citations and quotes omitted). The plaintiff must allege and prove that by mere force of numbers acting in unison the defendants exercised some peculiar power of coercion of the plaintiff which any individual standing in a like relation to the plaintiff would not have had. Id. (quoting Fleming v. Dane, 304 Mass. 46 (1939)) (internal quotes omitted). The peculiar power conspiracy is rarely proven. Wajda v. R.J. Reynolds Tobacco Co., 103 F. Supp. 2d 29, 37 (D. Mass. 2000). SMUG attempts to recite the elements of coercive or true conspiracy in a threadbare and conclusory fashion. (Dkt. 27, 252). 56 Its claim fails for at least two reasons. First, Massachusetts courts have applied the rare and very limited coercive conspiracy cause of action principally to remedy direct economic coercion, as in the combined action of groups of employers or employees, where through the power of combination pressure is created and results brought about different in kind from anything that could have been accomplished by separate individuals or in other kinds of concerted refusals to deal. Philip Morris, 62 F. Supp. 2d
Because SMUG attempts to recite the elements for coercive type or true conspiracy (id.), SMUG does not appear to be alleging a second, concerted action type of conspiracy cognizable under Massachusetts law, which is more akin to a theory of common law joint liability in tort. Philip Morris, 62 F. Supp. 2d at 244 (quoting Aetna, 43 F.3d at 1564). Nevertheless, if SMUG intended to claim the concerted type of conspiracy, it has failed to state a cause of action. The concerted action version depends on proof of underlying tortious conduct for which liability can be assigned. Phillip Morris, 62 F. Supp. 2d at 244. It is not an independent cause of action, but merely defines who may be liable for other torts. Id. As such, to state a claim for concerted action conspiracy, SMUG would have to also plead an independent tort cognizable under Massachusetts law (id.), and that tort must be intentional. Taylor v. Airco, Inc., 503 F. Supp. 2d 432, 448 (D. Mass. 2007) (PONSOR J.) (Plaintiffs must prove an underlying intended tort) (italics in original), aff'd sub nom. Taylor v. Am. Chemistry Council, 576 F.3d 16 (1st Cir. 2009). Here, the only other claims pled by SMUG are persecution (Counts I, II and III), and negligence. (Count V). The former is not a recognized tort under Massachusetts law, while the latter is not an intentional tort. Accordingly, a concerted action conspiracy claim would have to be dismissed.
56
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at 244 (emphasis added). SMUG does not specify exactly what Mr. Lively coerced it to do, which is by itself reason for dismissing the claim. Wajda, 103 F. Supp. 2d at 37 (dismissing complaint because the pleadings fail to explain how this conspiracy had a coercive effect upon plaintiff). But whatever SMUG has in mind, it has not alleged anything close to direct economic coercion. As the First Circuit instructed when it affirmed this Court in a recent decision, a federal court cannot in the context of a diversity case expand the tort law of Massachusetts beyond its present state. Taylor v. Am. Chemistry Council, 576 F.3d 16, 37 (1st Cir. 2009). Second, to be actionable, the coercion must be directed specifically at, and peculiarly focused against the plaintiff. Philip Morris, 62 F. Supp. 2d at 245 (emphasis added). Where the alleged coercion is directed at the public generally, or even to an entire segment of the population that engages in particular conduct (e.g., all smokers), rather than specifically at the plaintiff itself, the coercion is not actionable even if many of the individuals in the targeted group are members of the plaintiff. Id. at 245 & fn.6. (emphasis added). In Philip Morris, plaintiff was an employee benefit plan which claimed that defendant cigarette manufacturer conspired with others to coerce all smokers into smoking. Id. Plaintiff contended that the coercion was directed at it, because some smokers were members of its plan. Id. This District dismissed the coercive conspiracy claim, because it found that any coercion would have been directed at smokers in general, and was not peculiarly focused against the individual plaintiff. Id. There is no question that an allegation of a generally exerted and generally felt power of coercion is not sufficient to plead the independent tort of true conspiracy as recognized in Massachusetts. Id. (emphasis added). The same outcome must obtain here. SMUG consistently alleges that Mr. Livelys efforts were directed at an entire segment of the Uganda population (e.g., the LGBTI community). (Dkt. 27, 7, 12, 13, 25, 35, 36, 53, 61, 74, 93, 128, 129, 153, 214, 258). Even the injunction 72
SMUG seeks is to stop Mr. Lively from persecuting the LGBTI community. (Id. at p. 60, Prayer for Relief (e)). There is no doubt that not every person in the LGBTI community is an employee or member of SMUG, just like not all smokers were members of the plaintiff organization in Philip Morris. Nowhere in the Amended Complaint does SMUG allege that Mr. Livelys so-called coercion (whatever it may have been) was laser-sharp, directly and peculiarly focused on SMUG itself, as opposed to all homosexuals, all lesbians, all bisexuals, all transgender and all intersex people. As in Philip Morris, SMUGs claim for coercive conspiracy should be dismissed. IX. SMUG LACKS ASSOCIATIONAL STANDING. A. SMUG LACKS ASSOCIATIONAL STANDING TO BRING THIS ACTION ON BEHALF OF ITS MEMBERS, EMPLOYEES OR THE LGBTI COMMUNITY BECAUSE ITS TORT CLAIMS REQUIRE INDIVIDUALIZED PARTICIPATION OR PROOF.
SMUG seeks to assert various tort claims against Mr. Lively, not only on its own behalf for alleged harms it supposedly suffered as an organization, but also (and especially) on behalf of its individual staff-members and member organizations as well as the LGBTI community at large. (Dkt. 27, 5, 13, 21, 230, 232, 239, 245, 250, 258, 261). SMUG seeks to recover primarily money damages on its tort theories, as demonstrated by the first three out of the five remedies requested in its Prayer for Relief. (Id. at pp. 59-60, Prayer for Relief (a)-(c)) (requesting compensatory damages, punitive and exemplary damages, and attorneys fees and costs). SMUGs fourth requested relief is for declaratory judgment holding that Defendants conduct was in violation of the law of nations. (Id. at p. 60, Prayer for Relief (d)). Although it omitted injunctive relief entirely from its original Complaint (dkt. 1, p. 47), SMUG now requests, as an afterthought, injunctive relief enjoining [Mr. Lively] from persecute[ing] [SMUG] and the LGBTI community in Uganda. (Dkt. 27, p. 60, Prayer for Relief (e)).
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As shown below, SMUG lacks standing to bring tort claims for either damages or equitable relief in a representative capacity, because both the claims it asserts and the relief it requests require the participation of, and proof from, its individual members. 1. SMUGs Representative-Capacity Claims for Money Damages Are Barred as a Matter of Well-Settled Law.
[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977) (emphasis added). [W]hether an association has standing to invoke the court's remedial powers on behalf of its members depends in substantial measure on the nature of the relief sought. Warth v. Seldin, 422 U.S. 490, 515 (1975) (affirming dismissal of associations representative-capacity claims for money damages, because, to obtain relief in damages, each member of [the association] who claims injury as a result of respondents practices must be a party to the suit, and [the association] has no standing to claim damages on his behalf). In the four decades since Warth and Hunt, federal courts have consistently rejected association assertions of standing to seek monetary, as distinguished from injunctive or declaratory, relief on behalf of the organizations members. Telecomm. Research & Action Ctr. on Behalf of Checknoff v. Allnet Commc'n Serv., Inc., 806 F.2d 1093, 1095 (D.C. Cir. 1986) (collecting cases). Indeed, no federal court has allowed an association standing to seek monetary relief on behalf of its members. United Union of Roofers, Waterproofers, & Allied Trades No. 40 v. Ins. Corp. of Am., 919 F.2d 1398, 1400 (9th Cir. 1990) (emphasis added). This is because claims for monetary relief necessarily involve individualized proof and thus the
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individual participation of association members, thereby running afoul of the third prong of the Hunt test. Id.; see also Nat'l Coal. Gov't of Union of Burma v. Unocal, Inc., 176 F.R.D. 329, 344 (C.D. Cal. 1997) (It is generally accepted that associational standing is precluded where the organization seeks to obtain damages on behalf of its members) (emphasis added). SMUG is not the first organizational entity to seek money damages on behalf of its members specifically under the Alien Tort Statute. Several other organizations have asserted such claims, but the result has always been the same: every single court that has considered them has dismissed them for lack of standing. See e.g., Bano v. Union Carbide Corp., 361 F.3d 696, 714-15 (2d Cir. 2004) (affirming dismissal of alien associations claims for money damages, medical monitoring and property remediation under the Alien Tort Statute, because [n]ecessarily, each of [the] individual[] [members] would have to be involved in the proof of his or her claims); Nat'l Coal. Gov't of Union of Burma, 176 F.R.D. at 343-44 (dismissing alien associations claim for money damages under Alien Tort Statute for lack of standing, because damages could only be ascertained through individualized participation and proof); Doe v. Islamic Salvation Front, 257 F. Supp. 2d 115, 119-20 (D.D.C. 2003) (dismissing alien associations representative claims for damages under the Alien Tort Statute because individualized proof would be required from each member to determine the correct amount of damages); Alperin v. Vatican Bank, C-99-04941 MMC, 2008 WL 509300, *8 (N.D. Cal. Feb. 21, 2008) (dismissing conversion, unjust enrichment, restitution and other tort claims brought by alien associational plaintiffs under the Alien Tort Statute, because [a]n associational plaintiff lacks standing to seek monetary relief because such claims would require individual members to participate in the lawsuit); Presbyterian Church of Sudan v. Talisman Energy, Inc., 01 CIV.9882 (DLC), 2005 WL 1060353, *1-2 (S.D.N.Y. May 6, 2005) (dismissing alien associations claims for money
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damages under Alien Tort Statute [g]iven the necessity for individual proof of proximate causation). In Islamic Salvation Front, an alien association sued an Algerian political group and one of its leaders, alleging various tort claims under the Alien Tort Statute, including, as here, persecution and other crimes against humanity. 257 F. Supp. 2d at 117, 119. The association, as does SMUG, sought to recover money damages on behalf of its members. Id. at 119-20. The court applied traditional principles of representational standing, and concluded that: [w]hether the [association] has standing to sue depends on whether the claims against [defendant] require individualized proof from each [association] member. The fact that the [association] seeks money damages is dispositive: it does not have associational standing, because individualized proof would be required from each member to determine the correct amount of damages if [defendant] were found liable. Id. (emphasis added). The alien plaintiff in Islamic Salvation Front was represented by the same firm representing SMUG in this action, id. at 116, therefore SMUG ought to know that its representative-capacity claims for damages are barred. Similarly, in Bano, the Second Circuit affirmed the dismissal of an alien associations claims for money damages under the Alien Tort Statute, 57 concluding that Hunts third prong for associational standing precludes representative-capacity claims for money damages. Bano, 361 F.3d at 714. In so holding, the Second Circuit remarked: We know of no Supreme Court or federal court of appeals ruling that an association has standing to pursue damages claims on behalf of its members. Id. (emphasis added).
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Although it is not readily apparent from the Second Circuits opinion in Bano that the various tort claims dismissed therein had been brought under the Alien Tort Statute, that fact is plainly stated in the first sentence of the Procedural History section of the district courts opinion being reviewed and affirmed: On November 15, 1999, plaintiffs filed a class action complaint against defendants asserting claims under the Alien Tort Claims Act, 28 U.S.C. 1350, for alleged human rights violations arising out of the Bhopal gas Disaster in India on December 2-3, 1984. Bano v. Union Carbide Corp., 99 CIV.11329 JFK, 2003 WL 1344884, *1 (S.D.N.Y. Mar. 18, 2003), aff'd in part, vacated in part on other grounds, 361 F.3d 696 (2d Cir. 2004).
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These authorities plainly preclude SMUG from seeking money damages (whether compensatory, or punitive and exemplary) on behalf of its individual staff-members and member organizations or the LGBTI community. As was the case in Islamic Salvation Front, Bano, Burma, Alperin, and Presbyterian Church, determining both the existence and extent of any damages allegedly incurred by persons SMUG seeks to represent will require their individual participation and proof. Each individual member would have to participate in these proceedings, not only to testify how and to what extent he, she or it was hurt by Mr. Livelys speech, but also to partake in any judgment (or be bound by a no-liability determination). As the above courts have observed, repeatedly, no federal court has ever permitted an association to pursue these types of individualized money damages on behalf of its members. This Court should not be the first to stretch the limits of associational standing beyond their breaking point and should, therefore, dismiss with prejudice SMUGs representative-capacity claims for damages. 2. SMUG Lacks Associational Standing to Bring a RepresentativeCapacity Claim for Declaratory or Injunctive Relief Sounding in Tort, Because the Claim Requires Individualized Participation or Proof.
Unlike claims for money damages, claims for injunctive or declaratory relief have sometimes been allowed to be brought in a representative capacity. This does not mean, however, that an association automatically satisfies the third prong of the Hunt test simply by requesting equitable relief rather than damages. Bano, 361 F.3d at 714. Indeed, plenty of injunction cases have been dismissed because of the need for individualized proof. Pharm. Care Mgmt. Ass'n v. Rowe, 429 F.3d 294, 314 (1st Cir. 2005) (emphasis added) (collecting cases) (BOUDIN, C.J. concurring). Thus, the Court must examine not only whether the relief requested, but also whether the claim asserted requires the participation of individual members in the lawsuit. Hunt, 432 U.S. at 343 (emphasis added). If that inquiry reveals that the organization seeks a purely legal ruling without requesting that the federal court award 77
individualized relief to its members, the Hunt test may be satisfied. Bano, 361 F.3d at 714 (emphasis added). On the other hand, [t]he organization lacks standing to assert claims of injunctive relief on behalf of its members where the fact and extent of the injury that gives rise to the claims for injunctive relief would require individualized proof. Id. (quoting Warth, 422 U.S. at 51516). Here, SMUGs representative-capacity claims for declaratory and injunctive relief fail for at least two separate reasons: (a) SMUG does not seek a purely legal ruling, and (b) SMUGs claims are brought in tort, and necessarily require individualized proof. a. SMUG Does Not Seek a Purely Legal Ruling.
SMUG most certainly does not seek a purely legal ruling divorced from any individualized relief to its members. Bano, 361 F.3d at 714. Instead, SMUG goes out of its way to allege, repeatedly after each of its three Claims for Relief, that it is seeking money damages for its individual member organizations and employees in an amount to be determined at trial. (Dkt. 27, 239, 245, 250, 256, 262). In fact, while it trumpets the alleged money damages of its members and employees, SMUG says nothing about equitable relief (declaratory or injunctive) in any of its five Claims for Relief. (Id. at 236-262). Evidently, SMUG is seeking money damages, but has thrown in ancillary declaratory and injunctive relief requests (the latter only as an afterthought in the Amended Complaint) to survive a representational standing challenge. (Id.) This is quite different from the typical case in which associational standing is found for equitable claims because plaintiff seeks only equitable, or purely legal relief. See e.g., Rowe, 429 F.3d at 314 (That only injunctive relief is sought here distinguishes this case from damages cases; [w]here only injunctive relief is sought, an association may sometimes be allowed to sue) (emphasis added) (BOUDIN, C.J. concurring); Alaska Fish & Wildlife Fed'n v. Dunkle, 829 78
F.2d 933, 938 (9th Cir. 1987) (allowing association standing because the [association] seeks declaratory and prospective relief rather than money damages [and thus] its members need not participate directly in the litigation) (emphasis added). Because SMUG does not seek a purely legal ruling, it does not have associational standing to bring a declaratory judgment claim on behalf of its members and employees. b. SMUGs Claims for Declaratory and Injunctive Relief Sound in Tort and Necessarily Require Individualized Proof.
SMUGs representative-capacity claims for equitable relief also fail because the fact and extent of the injury that gives rise to the claims for injunctive [and declaratory] relief would require individualized proof. Bano, 361 F.3d at 714. SMUGs claims for declaratory and injunctive relief are grounded in tort, just like its claims for money damages. This is because the Alien Tort Statute, on which SMUG premises its persecution claims, provides federal jurisdiction for any civil action by an alien for a tort only. 28 U.S.C. 1350 (emphasis added). SMUGs two new claims civil conspiracy and negligence also clearly sound in tort. As such, the only claims that SMUG asserts are tort claims. Id. But tort claims can only be adjudicated by considering the testimony and other evidence of the people allegedly [injured]. Nat'l Coal. Gov't of Union of Burma, 176 F.R.D. at 344 (emphasis added). The [association] is simply not a suitable proxy. Id. (emphasis added) (dismissing representative-capacity claims for injunctive relief brought by association under Alien Tort Statute for failure to satisfy the third prong of Hunt, because injunctive relief claims sounded in tort). In the typical declaratory relief action brought by an association, plaintiff seeks a declaration that a statute or regulation is unconstitutional. Dealer Store Owners Ass'n, Inc. v. Sears, Roebuck & Co., CIV05-1256 ADM/JSM, 2006 WL 91335, *5 (D. Minn. Jan. 12, 2006) (dismissing associational declaratory claim for lack of standing because it involved individual
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contract claims, not the typical associational standing case, where a statute or regulation is being challenged) (emphasis added). While an association may, in typical cases, have standing to seek equitable relief against a statute or regulation which uniformly applies to all its members, it does not have representative standing to seek declaratory or injunctive relief for its members against tortious conduct, which affects different members in different ways: Unlike most prior associational standing cases, this action does not challenge a statute, regulation or ordinance . Instead, the Amended Complaint sets forth allegations of tortious conduct . As such, the Amended Complaint requires individual determinations as to whether [defendant] committed various torts against certain of its members . Accordingly, the Complaint does not raise a pure question of law, which can be considered without the individual participation of [the association]s members. DDFA of S. Florida, Inc. v. Dunkin' Donuts, Inc., 00-7455-CIV, 2002 WL 1187207, *7 (S.D. Fla. May 22, 2002) (emphasis added) (dismissing associational claims for lack of standing). Here, SMUG does not seek a declaration that a statute or regulation is unconstitutional, and to enjoin its enforcement. Instead, SMUG seeks a declaration that Defendants [allegedly tortious] conduct [towards its individual members and employees] was in violation of the law of nations, and SMUG seeks to enjoin that tortious conduct against individual members in the future. (Dkt. 27, p. 60, Prayer for Relief (d)-(e)) (emphasis added). In other words, SMUG is not simply seeking a declaration to clarify the law of nations, and the rights of all people under the law of nations, but rather a declaration that Mr. Livelys specific conduct against specific individuals violated that law and harmed its individual members. (Id.) As such, the fact and extent of the injury that gives rise to [its] claims for injunctive [and declaratory] relief that is Mr. Livelys allegedly tortious conduct and its effects on SMUGs individual members would require individualized proof in a manner that destroys associational standing under Hunt. Bano, 361 F.3d at 714. This is because not every alleged member of SMUG alleges to have been injured in the same way, at the same time and to the same extent, by Mr. Livelys conduct. 80
The diverse and highly individualized nature of the injury that gives rise to [SMUGs] claims for injunctive [and declaratory] relief is plainly evident on the face of SMUGs Amended Complaint. The eight specific acts of persecution which give rise to SMUGs claims for declaratory and injunctive relief, involved different alleged perpetrators, different alleged victims, and different alleged conduct, occurring at different times, in different places. (Dkt. 27, 165-228). Not surprisingly, these different variables are alleged to have caused widely different injuries for SMUGs member organizations and their staff members. (Id. at 230). SMUG claims that some of its members were deprived of the right to equality and nondiscrimination, while others were deprived of the right to expression, association, assembly, and the press, and others were subjected to arbitrary arrest and detention, while others were subjected to torture, and other cruel, inhuman and degrading treatment, and still others had their homes invaded and their honor and reputation attacked. (Id.) If the fact and extent of the alleged injuries that give rise to SMUGs claim for equitable relief are not sufficiently individualized to preclude associational standing here, the limitation has no meaning. Because Alien Tort Statute claims necessarily sound in tort, it is not surprising that courts which have examined associational standing for equitable claims (injunctive or declaratory) under this law have dismissed them for lack of standing. See e.g., Bano, 361 F.3d at 714-15 (affirming dismissal of associational claims for injunctive relief (as well as money damages) under Alien Tort Statute, because injunctive relief claims grounded in tort require individualized participation or proof); Nat'l Coal. Gov't of Union of Burma, 176 F.R.D. at 344 (even the [association]s claim for injunctive relief fails to satisfy the third prong of the Hunt test [because] all the claims asserted in the First Amended Complaint are tort claims); Presbyterian Church of Sudan, 01 CIV.9882 (DLC), 2005 WL 1060353, *1-2 (holding that association lacked standing to seek either damages or injunctive relief on behalf of its members under the Alien Tort Statute, because 81
the claims required individualized proof) (reversing contrary decision of predecessor judge in the same case, 244 F. Supp. 2d 289 (S.D.N.Y. 2003), because it was erroneously decided and it preceded and contradicted the Second Circuits dispositive holding in Bano). This Court should hold likewise, and dismiss with prejudice SMUGs representativecapacity claims for declaratory and injunctive relief. B. SMUG LACKS ASSOCIATIONAL STANDING TO BRING CLAIMS FOR DECLARATORY AND INJUNCTIVE RELIEF BECAUSE THEY ARE NOT REDRESSABLE.
Even if the Court concludes that SMUGs representative-capacity claims for declaratory and injunctive relief do not required individualized participation or proof, which it should not do, the Court should still dismiss these claims because they are not redressable. To assert equitable claims on behalf of its individual members, SMUG would have to show that the members have Article III standing to assert such claims themselves. Hunt, 432 U.S. at 343. This, in turn, would require satisfaction of the familiar standing triad: a concrete injury, fairly traceable to the challenged conduct, which likely will be redressed by a favorable decision from the court. New Hampshire Right to Life Political Action Comm. v. Gardner, 99 F.3d 8, 13 (1st Cir. 1996) (emphasis added). The requirement of showing redressability applies with undiminished force to actions for declaratory judgment. Igartua-De La Rosa v. United States, 417 F.3d 145, 153 (1st Cir. 2005) (LIPEZ, J. concurring). To establish redressability, SMUG has the burden of showing that it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (emphasis added) (internal quotes omitted) (plaintiff failed to establish redressability on its injunctive relief claim because remedy for its injury required action from absent parties over whom the court had no power). Redressability requires the substantial likelihood that the requested relief will remedy the alleged injury in 82
fact. Bonas v. Town of N. Smithfield, 265 F.3d 69, 73 n.4 (1st Cir. 2001) (emphasis added) (quoting Vermont Agency of Natural Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 771 (2000)). SMUG cannot meet its burden of satisfying the redressability requirement for its equitable relief claims. The declaratory and injunctive relief sought by SMUG on behalf of its members and employees is not substantially likely to redress the alleged persecution of which SMUG complains. Neither the four alleged co-conspirators of Mr. Lively, nor the Ugandan Parliament, nor the Ugandan Police, nor Ugandan Minister of Ethics Simon Lokodo, nor the Ugandan tabloids, nor any of the other individuals which SMUG blames for the eight acts of alleged persecution are before this Court. Even if the Court were to grant the declaratory and injunctive relief requested by SMUG against Mr. Lively, a private American citizen, such measures would have no legal effect whatsoever on the sovereign government of Uganda or any of the Ugandan state and private actors alleged to be actively persecuting SMUGs constituents. Unless they are enjoined by Ugandan courts, the Ugandan newspapers would remain free to publish what they want, the Ugandan police would remain free to arrest, detain and mistreat whomever they want, Minister Lokodo would remain free to raid whatever gatherings or homes he wants, the sovereign Ugandan Parliament would remain free to consider and enact whatever bills its wants, and Ugandan private actors would remain free to discriminate against whomever they want in housing, employment, health and education. Where, as is clearly the case here, the requested injunctive or declaratory relief cannot reach independent third parties who are also responsible for the harm alleged, the equitable relief claim is not redressable and plaintiff has no standing to assert it. Lujan, 504 U.S. at 561 (holding that plaintiff failed to establish redressability on its injunctive relief claim because the remedy for its alleged injury required action from parties not before the court, over whom the court had no power). This is especially true where, as here, the independent third party is a sovereign 83
government or legislature. Igartua-De La Rosa, 417 F.3d at 155 (LIPEZ, J. concurring) (If a legislative body would be within its rights to ignore the courts decision, and the plaintiff cannot convince the court that it is likely, as opposed to merely speculative, that the legislature will react in the way that he hopes, the redressability requirement has not been met) (quoting Lujan, 504 U.S. at 561). This precise result obtained in Doe v. Unocal Corp., 67 F. Supp. 2d 1140 (C.D. Cal. 1999), an Alien Tort Statute case. Plaintiffs in Unocal were Burmese residents who claimed that the construction of a gas pipeline in Burma was causing human rights abuses, including forced relocation, forced labor and torture. Id. at 1141. Plaintiffs asked the court to enjoin Unocal Corporation, a joint venturer in the pipeline project, from contributing funds to the venture. Id. Relying on Lujan, the court found that plaintiffs had no standing to seek injunctive relief, because they could not establish redressability. Id. at 1144-47. Unocal was but one of many actors involved in the pipeline project, and none of the other independent actors were before the court. Id. at 1146. As such, any relief afforded plaintiffs depends nevertheless on the independent actions of individuals or corporate entities who are not parties to this lawsuit. Id. (emphasis added). As a result, any equitable relief enjoining Unocal's participation would not be likely to effect the elimination of human rights violations in furtherance of the project. Id. at 1147. For exactly the same reason, SMUGs equitable relief claims must meet with the same fate here. SMUG may speculate that a declaration that Mr. Livelys speech violated international law, and an injunction against him alone, may provide some sort of emotional vindication and perhaps deter others in the future, but the Supreme Court has made it clear that neither deter[ring] the risk of future harm, nor psychic satisfaction is an acceptable Article III remedy, because such a principle would make the redressability requirement vanish. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 106-07 (1998). Relief that does not remedy the 84
injury suffered cannot bootstrap a plaintiff into federal court; that is the very essence of the redressability requirement. Id. at 107 (emphasis added). In sum, without the accompanying claims for money damages, which SMUG is constitutionally barred from seeking on behalf of its members, the equitable relief sought against Mr. Lively is not only worthless to [SMUG], it is seemingly worthless to all the world. Steel Co., 523 U.S. at 106. By itself, the equitable relief is not at all likely, much less substantially likely, to redress the persecution alleged by SMUG. Accordingly, SMUG does not have standing to seek equitable relief on behalf of its members and employees, so its representative-capacity claims should be dismissed, with prejudice. C. SMUG LACKS ASSOCIATIONAL STANDING BECAUSE IT CANNOT PLEAD SUFFICIENT CAUSATION.
In addition to redressability, SMUG also cannot meet the traceability element of Article III standing. A complaint must be dismissed where, as here, it fails to plead sufficient facts to show an injury that is fairly traceable to specific conduct by the defendant. Lujan 504 U.S. at 560. Such a connection cannot be overly attenuated. Donahue v. City of Boston, 304 F.3d 110, 115 (1st Cir. 2002). Because the opposing party must be the source of the harm, causation is absent if the injury stems from the independent action of a third party. Katz v. Pershing, LLC, 672 F.3d 64, 71-72 (1st Cir. 2012). In other words, the case or controversy limitation of Art. III still requires that a federal court act only to redress injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court. Simon v. E. Kentucky Welfare Rights Org., 426 U.S. 26, 41-42 (1976). An alleged injury is not fairly traceable to mere advocacy by the defendant unless the advocacy is directed to produce or incite imminent lawless action and is likely to produce or incite such action. N. A. A. C. P. v. Claiborne Hardware Co., 458 U.S. 886, 927-28 (1982). As
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demonstrated throughout this memorandum, SMUG has utterly failed to plead that Mr. Lively incited anyone to imminent violence. Moreover, SMUG fails to fairly trace any conduct by Mr. Lively to the eight alleged incidents of persecution. Chronologically, the first injury alleged in the Amended Complaint is the 2005 raid by Ugandan police of the home of Victor Mukasa, a founder of SMUG. (Dkt. 27, 30, 209-214). However, SMUG pleads no facts to show a causal connection between Mr. Livelys 2002 Uganda trip, or any subsequent action, and the raid. While the Claiborne court found days or months too long to support imminent incitement, the police raid alleged here took place years after Mr. Livelys first visit to Uganda. Further, the alleged raid was an independent action of some third party not before the court, meaning the Ugandan police. SMUG fails to allege that Mr. Lively, or even any of his four alleged co-conspirators, had a fairly traceable causal connection to the police who implemented the alleged raid. Instead, SMUG reveals another intervening action by yet another independent party, alleging that the raid took place two weeks after the state-owned newspaper ran an article urging action by police. (Id. at 212). SMUG fails to plead even an attenuated connection between Mr. Lively and the state-owned newspaper that allegedly urged action, or the police who carried out the alleged 2005 Mukasa raid. Similarly, SMUG details a 2008 police arrest of a SMUG staff member and a founding member of a purported member organization. (Id. at 186-193). In the lengthy description, SMUG fails to trace any connection between the arrests and Mr. Lively, who had last visited Uganda six years before. Again, SMUG details two police raids on two separate conferences in 2012. (Id. at 165-185). Yet, in the detailed description, SMUG fails to trace any connection between the raids and Mr. Lively, who had last visited Uganda three years before. Causation is absent if the injury stems from the independent action of a third party. Katz, 672 F.3d at 71-72. As with all of 86
the other instances of alleged persecution, the allegedly bad actors in these two raids the Ugandan police and Minister of Ethics Lokodo are not even alleged co-conspirators of Mr. Lively. (Dkt. 27, 44, 94-164). Their independent actions preclude SMUG from showing the requisite causation. Even less concrete and more attenuated are the generalized grievances concerning the media in Uganda. (Id. at 199-208, 215-225). SMUG links the so-called crack-down on media to its 2007 press conference. (Id. at 199). SMUG asserts that, in direct response to its press conference, five years after Mr. Livelys previous visit to Uganda, Deputy Attorney General Fred Ruhindi, who is not named as an alleged co-conspirator, called on agencies to take appropriate action because homosexuality is an offence under the laws of Uganda. (Id. at 200). SMUG alleges statements by Mr. Buturo and Mr. Ssempa advocating a different view (id. at 201-202), alleges the suspension of a third party radio station manager by a government agency (id. at 205), and alleges the publishing of newspaper stories by a tabloid. (Id. at 206, 217219). SMUG then connects various threats and harassment received by various individuals to the outing in the tabloids. (Id. at 220-221). However, none of these third parties are before this Court. SMUG fails to plead any plausible causal connection between the independent conduct of these third parties and Mr. Lively. SMUG cant rest alone on Mr. Livelys advocacy and opinions about homosexuality that he shared with Ugandans, because emotional and persuasive appeals and threats of vilification or social ostracism do not ever constitute imminent lawless action, let alone when they are months or years removed from alleged injuries, and therefore cannot be fairly traced to any injury. Claiborne, 458 U.S. at 926. At bottom, the undeniable and enormously revealing fact is that no statement or action by Mr. Lively appears even once in the section of the Amended Complaint where SMUG details the eight acts of persecution. (Dkt. 27, 165-228). This is not accidental. SMUG cannot plead a 87
fairly traceable causal connection between the injuries claimed by its members and Mr. Lively. Therefore SMUG lacks standing to bring suit on their behalf. D. SMUG LACKS ASSOCIATIONAL STANDING BECAUSE IT HAS NOT ALLEGED ASSOCIATIONAL AUTHORITY.
A final and independent reason why SMUG lacks associational standing is its failure to plead that it has been authorized to bring this suit on behalf of its members, employees or the LGBTI community at large. [A]n organization only has associational standing when it has a clear mandate from its membership to take the position asserted in the litigation. Nat'l Coal. Gov't of Union of Burma, 176 F.R.D. at 344 n.16. In other words, [SMUG] cannot have associational standing without an allegation that its members have either requested to be represented or consented to be represented by [SMUG]. Id. (quoting Natural Resources Defense Council, Inc. v. United States EPA, 507 F.2d 905, 910 (9th Cir.1974); Associated General Contractors v. Coalition for Economic Equity, 950 F.2d 1401, 140809 (9th Cir. 1991)). This principle arises out of the prudential concerns in representing third-parties: Federal courts must hesitate before resolving a controversy, even one within their constitutional power to resolve, on the basis of the rights of third persons not parties to the litigation. The reasons are two. First, the courts should not adjudicate such rights unnecessarily, and it may be that in fact the holders of those rights either do not wish to assert them, or will be able to enjoy them regardless of whether the in-court litigant is successful or not. Second, third parties themselves usually will be the best proponents of their own rights. Singleton v. Wulff, 428 U.S. 106, 113-14 (1976) (emphasis added). SMUG fails to allege anywhere in its Amended Complaint that it has a clear mandate even from its members and employees, let alone the non-member LGBTI community at large, to pursue this litigation on their behalf. This glaring omission is particularly relevant here, because SMUG claims that it is not merely a membership association with individual members, but an umbrella organization with constituent member organizations which themselves presumably
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have their own leadership and individual members. (Dkt. 1, p. 1, 1). In the absence of an allegation from SMUG, these organizations cannot be presumed to have authorized this suit. Having been previously put on notice of this defect (dkt. 22, pp. 79-80), SMUG could have theoretically corrected it in its Amended Complaint, if it could in good faith allege a clear mandate to bring this action on behalf of others. Tellingly, SMUG did not do so. In sum, as aptly put by the Ninth Circuit, [t]here is no escaping the fact that [SMUG] in this case cannot overcome the [standing] hurdle placed before it by Supreme Court precedent. United Union of Roofers, 919 F.2d at 1400. The Court should dismiss all of SMUGs representative-capacity claims for lack of standing. X. SMUG LACKS STANDING TO BRING THIS ACTION ON ITS OWN BEHALF. SMUG also attempts to assert in its own right the same claims it asserts on behalf of its members, employees and the LGBTI community at large. But these individual-capacity claims fail for the same reason: lack of standing. Like any other plaintiff, when an organization brings an action in its own behalf, rather than on behalf of its members, the organization must show that it has standing to assert its claims. Nat'l Coal. Gov't of Union of Burma, 176 F.R.D. at 340. [T]he organization must show[] actual or threatened injury in fact that is fairly traceable to the alleged illegal action and likely to be redressed by a favorable court decision. In re S. African Apartheid Litig., 617 F. Supp. 2d 228, 294 (S.D.N.Y. 2009) (quoting Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 649 (2d Cir. 1998)) (internal quotes omitted). The injury-in-fact alleged by SMUG to itself is that it devoted time and resources to assist homosexuals who have been arbitrarily arrested and harassed and/or mistreated by the police (dkt. 27, 227), and who have been forcibly evicted from their homes by landlords. (id. at 228) (emphasis added). Assuming, for the sake of argument, that these alleged organizational
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expenditures are sufficient to establish the requisite injury-in-fact, SMUG still lacks individual standing to sue because it cannot satisfy the second and third prongs of Article III standing. As demonstrated in section IX(C), supra, SMUG fails the causation or traceability prong of Article III standing, which means SMUG has no standing to bring any of its claims. The eight acts of persecution alleged by SMUG took place many months or years after Mr. Livelys visits to Uganda, and were allegedly perpetrated by independent third parties absent from this litigation, not by Mr. Lively or even any of his four alleged co-conspirators. Factually, and certainly constitutionally, SMUG cannot connect the dots between Mr. Livelys non-violent, protected political speech and SMUGs alleged organizational injuries. (See, pp. 4-8, supra). SMUG may have standing to bring claims in Uganda against the third parties it alleges to have perpetrated acts of persecution (e.g., Minister Lokodo, or Ugandan police, or Ugandan tabloids), as it has successfully done thus far. But SMUG has no standing to sue Mr. Lively in a United States court. A climate of hostility is much too generalized and attenuated to serve as a basis for Article III standing, but even if it were adequate, the independent actions of these third parties preclude SMUG from showing a causal connection between Mr. Lively and its alleged harm. Simon v. E. Kentucky Welfare Rights Org., 426 U.S. 26, 41-42 (1976) (federal court cannot act to redress injury caused by independent action of some third party not before the court). Indeed, SMUG readily attributes the climate of hostility in Uganda to the combination of legal proscriptions against and criminalization of homosexuality, along with discriminatory policies and practices relating to government services, media outings and statements and policies of government officials and their non-governmental counterparts. (Dkt. 27, 226) (emphasis added). Homosexuality was illegal in Uganda (as in many other parts of the world) long before Mr. Livelys first visit there in 2002, and thus SMUG cannot possibly lay the legal proscriptions against and criminalization of homosexuality at Mr. Livelys feet. 90
In addition, as demonstrated in section IX(B), supra, SMUG also fails the redressability prong for its equitable relief claims, because no declaration or injunction from this Court against Mr. Lively could bind the independent third parties absent from this case which SMUG blames for its alleged persecution. This incontestable fact deprives SMUG not only of associational standing, but also of standing to assert equitable claims in its own right. Because SMUG lacks standing to assert any claims in its individual capacity, its entire Amended Complaint should be dismissed, with prejudice. XI. THIS COURT LACKS SUBJECT-MATTER JURISDICTION OVER SMUGS PERSECUTION CLAIMS BECAUSE THE ALIEN TORT STATUTE DOES NOT REACH EXTRATERRITORIAL CONDUCT. SMUGs sole basis for invoking the subject-matter jurisdiction of this Court over its persecution claims (Counts I, II and III) is the Alien Tort Statute. (Dkt. 27, 2, 15). However, because the alleged acts of persecution took place outside the sovereign territory of the United States, in Uganda, the Alien Tort Statute does not provide jurisdiction. There is a wellestablished, longstanding and exceedingly strong presumption against the extraterritorial application of any statute, and SMUG cannot overcome its heavy burden of demonstrating that the Alien Tort Statute was intended to reach extraterritorial conduct. Although other courts have assumed without deciding that the statute covers extraterritorial acts, none of those decisions are binding on this Court. Accordingly, this Court starts with a clean slate and has a unique opportunity to reaffirm constitutional jurisdictional boundaries and the limited-jurisdiction nature of federal courts. The Court should dismiss SMUGs persecution claims (Counts I, II and III) for lack of subject-matter jurisdiction.
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A.
THE SUPREME COURT, THE FIRST CIRCUIT AND THIS DISTRICT ALL RECOGNIZE AND ENFORCE THE LONGSTANDING AND STRONG PRESUMPTION AGAINST EXTRATERRITORIAL APPLICATION OF FEDERAL STATUTES. It is a longstanding principle of American law that legislation of Congress, unless a
contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States. E.E.O.C. v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991) (quoting Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949)). Where a statute lacks a clear and affirmative congressional intention to reach extraterritorial conduct, the statute has no extraterritorial effect even if such an effect is otherwise a possible interpretation of the statute. Morrison v. Nat'l Australia Bank Ltd., 130 S. Ct. 2869, 2877-883, __ U.S. __ (2010). In Morrison, plaintiffs, who were foreign shareholders in the defendant company, brought suit in federal district court for violation of 10(b) of the Securities and Exchange Act of 1934. Morrison, 130 S. Ct. at 2873. The Supreme Court held that the Act did not apply extraterritorially. Id. at 2883. The Court reasoned that, absent an affirmative indication within the Act to the contrary, there could be no extraterritorial application. Id. at 2884. This was so even though the defendant committed some domestic acts relating to the perpetration of the fraud, because the fraud itself was concluded abroad, and thus plaintiffs claims lacked the necessary domestic basis for suit. Id. The party asserting federal subject-matter jurisdiction, in this case SMUG, has the burden of proving it. Able Sales Co., Inc. v. Compania de Azucar de Puerto Rico, 406 F.3d 56, 61 (1st Cir. 2005); Bull HN Info. Sys., Inc. v. Hutson, 229 F.3d 321, 328 (1st Cir. 2000). This District has repeatedly recognized that only the clearest showing of extraterritorial intent will overcome the presumption. Smith v. Raytheon Co., 297 F. Supp. 2d 399, 403 (D. Mass. 2004) (presumption against extraterritoriality can only be overcome with clear evidence of congressional intent) (emphasis added); Telford v. Iron World Mfg., LLC, 680 F. Supp. 2d 337, 342 (D. Mass. 2010)
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(Massachusetts statutes are presumed not to apply extraterritorially unless there is clear legislative intent) (emphasis added) (internal quotation marks omitted); Northland Cranberries, Inc. v. Ocean Spray Cranberries, Inc., 382 F. Supp. 2d 221, 227 (D. Mass. 2004) (federal legislation only applies domestically absent a clear expression of congressional intent to the contrary) (emphasis added). The Supreme Court has counseled that, in case of doubt courts must apply a construction of any statute as intended to be confined in its operation and effect to the territorial limits over which the lawmaker has general and legitimate power. Am. Banana Co. v. United Fruit Co., 213 U.S. 347, 355-57 (1909) (quotes omitted). The reason for erring on the side of caution is simple: All legislation is prima facie territorial. Id. at 357 (emphasis added). B. NOTHING IN THE TEXT, CONTEXT, STRUCTURE OR LEGISLATIVE HISTORY OF THE ALIEN TORT STATUTE AFFIRMATIVELY AND CLEARLY INDICATES THAT CONGRESS INTENDED EXTRATERRITORIAL APPLICATION.
In Carnero v. Boston Scientific Corp., the First Circuit identified the relevant sources that could be examined to divine congressional intent on extraterritoriality, but not before cautioning that the presumption can be overcome only if there is an affirmative intention of the Congress clearly expressed. 433 F.3d 1, 7 (1st Cir. 2006) (emphasis added) (internal quotation marks omitted) (quoting Arabian Am. Oil Co., 499 U.S. at 248). The First Circuit held that evidence of Congressional intent can be found, if at all, in the particular statutes text, context, structure, and legislative history. Carnero, 433 F.3d at 7 (emphasis added) (citing Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 177 (1993)). None of these indicators provide any evidence that the first Congress intended the Alien Tort Statute to reach conduct outside of the United States.
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1.
The Text of the Alien Tort Statute Does Not Affirmatively and Clearly Evidence Extraterritorial Intent.
The plain text of the Alien Tort Statute fails to lend even a scintilla of proof that it was intended by Congress to apply extraterritorially. The statute provides: 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. 28 U.S.C. 1350 (West). 58 SMUG may argue that the use of the term any (emphasis added) in the reference to civil action by an alien impliedly includes all claims under the sun, including extraterritorial conduct. The Supreme Court, however, has repeatedly foreclosed this argument, holding that such general terms, which could be interpreted broadly in other contexts, are not sufficient to overcome the strong presumption against extraterritoriality. See e.g., Foley Bros., 336 U.S. at 285 (holding that federal labor statute requiring an eight-hour day provision in [e]very contract made to which the United States ... is a party did not apply to contracts for work performed in foreign countries because extraterritorial reach cannot be inferred from general terms) (emphasis added); United States v. Palmer, 16 U.S. 610, 631 (1818) (holding that language applying a statute to any person or persons cannot overcome the presumption against extraterritorial application) (emphasis added); Am. Banana Co., 213 U.S. at 357 (holding that [w]ords having universal scope, such as every contract in restraint of trade, every person who shall monopolize, etc., will be taken, as a matter of course, to mean only everyone subject to such legislation, not all that the legislator subsequently may be able to catch) (emphasis added). Another equally unavailing argument that SMUG may advance is that inclusion of the word alien in the statute somehow demonstrates that any alien can sue for any tort that took place anywhere under the sun. But the statutory language clearly shows that the term alien
58
The [Alien Tort Statutes] content has not been materially amended since its enactment. Doe v. Exxon Mobil Corp., 654 F.3d 11, 21 (D.C. Cir. 2011).
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describes only the individual who can bring a claim, not the site of the tort. The statute provides a mechanism for an alien to bring an action in a United States court, for a tort that took place within the United States. The Supreme Court has also foreclosed this argument, in Arabian Am. Oil Co., where it held that the use of the term alien in an exemption clause of Title VII, even coupled with the broad jurisdictional terms of the statute, did not constitute clear evidence of extraterritorial congressional intent. Arabian Am. Oil Co., 499 U.S. at 248-49, 255. See also, Doe v. Exxon Mobil Corp., 654 F.3d 11, 76 (D.C. Cir. 2011) (Nor does the ATS's specific reference to alien plaintiffs establish that the statute applies extraterritorially. That language merely ensures that alien plaintiffs can sue under customary international law for injuries suffered within the United States) (KAVANAUGH, J., dissenting in part) (italics in original). 59 That the words any or alien could plausibly be construed more broadly in other contexts is of no moment when contending with the strong presumption against extraterritoriality. The Supreme Court has made clear that the mere possibility, and even plausibility, that the language of a statute could be read to include extraterritorial application does not overcome the presumption against it. Arabian Am. Oil Co., 499 U.S. at 253 (holding that to allow for even plausible interpretations in favor of extraterritorial application would negate the presumption against extraterritoriality to the point that there would be little left of it). In sum, nothing in the text of 28 U.S.C. 1350 affirmatively, let alone clearly, expresses any congressional intent to reach conduct outside the sovereign borders of the United States. 2. The Context of the Alien Tort Statute Does Not Affirmatively and Clearly Evidence Extraterritorial Intent.
The context in which the Alien Tort Statute was drafted and enacted provides even less support for any notion of extraterritoriality. The statute was enacted by the First Congress as part
59
The majoritys decision in Exxon Mobil is discussed in detail in section XI(C), infra.
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of the Judiciary Act of 1789, ch. 20, 9, 1 Stat. 73, 77 (1789). Exxon Mobil Corp., 654 F.3d at 20. The Supreme Court has noted that the jurisdiction [of the Alien Tort Statute] was originally understood to be available to enforce a small number of international norms that a federal court could properly recognize as within the common law enforceable without further statutory authority. Sosa v. Alvarez-Machain, 542 U.S. 692, 729 (2004). The court in Sosa explained that [w]hen 1350 was enacted, the accepted conception was of the common law as a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute. Id. (quoting Black and White Taxicab & Transfer Co. v. Brown and Yellow Taxicab & Transfer Co., 276 U.S. 518, 533 (1928)). In other words, the Congress that enacted 1350 did so in the firm belief that the common law principles that informed the statute were relatively fixed. Sosa, 542 U.S. at 725. Because the Congress that enacted 1350 did so in light of relatively constant common law principles, an examination of the common law causes of action that were brought in the early tenure of the Alien Tort Statute reveals its inherently domestic application and context. The statute was enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations thought to carry personal liability at the time: offenses against ambassadors, violation of safe conducts, and piracy. Sosa, 542 U.S. at 694. Indeed, the conduct that inspired the creation of the Alien Tort Statute was the mistreatment of foreign officials on U.S. soil. Jason Jarvis, A New Paradigm for the Alien Tort Statute Under Extraterritoriality and the Universality Principle, 30 Pepp. L. Rev. 671, 678 (2003). SMUG may be tempted to point to the inclusion of piracy in the list of early Alien Tort Statute claims as evidence of extraterritorial application, but such an argument ignores the fact that jurisdiction over ships and persons on the high seas was considered domestic jurisdiction by early United States courts. Id. (emphasis added) (citing State v. Carter, 27 N.J.L. 499 (N.J. 96
1859)) (When [a crime is committed] upon our vessels, in whatever solitary corner of the ocean the vessel and all it contains is still within our jurisdiction But we have never treated acts done upon the vessels of other governments as within our jurisdiction, nor has such ever been done by any civilized government) (emphasis added). As with the other potential arguments in favor of extraterritoriality, the Supreme Court has also conclusively foreclosed this one, when it held that, on the high seas, only the crime of piracy or crimes by United States citizens occurring on a United States vessel could be actionable in a United States court under a 1790 law. Palmer, 16 U.S. at 610. The crime of robbery committed by a person who is not a citizen of the U[nited] States, on the high seas, on board of a ship belonging exclusively to subjects of a foreign state, is not piracy under the act, and is not punishable in the courts of the United States. Id. (emphasis added). While the Palmer Court ruled on a separate act of the First Congress, that law was enacted only one year after the Alien Tort Statute, and thus the Courts interpretation of it reveals the decidedly domestic context of the Alien Tort Statute. The inclusion of piracy in the list of actionable torts evidenced domestic, not extraterritorial context, because jurisdiction over the high seas did not include acts committed by foreigners onboard foreign vessels. It included only piracy as defined by the law of nations and committed by United States citizens, because such piracy was considered domestic in nature. 60 In sum, nothing in the context of the Alien Tort Statute reveals any intent by the First Congress to extend its reach beyond the United States borders.
Furthermore, the crime of piracy as a violation of the law of nations (the court in Palmer dealt with a definition of piracy as codified by Congress) had the effect of causing a vessel [to lose] her national character [and] a piracy committed by a foreigner, from on board such a vessel, upon any other vessel whatever, is punishable . United States v. Furlong, 18 U.S. 184, 185 (1820). In other words, pirates were considered subjects of no sovereign, and as such jurisdiction exercised over acts committed by them on the high seas was not extraterritorial because it did not encroach into the jurisdiction of a foreign nation. Id.
60
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3.
The Structure of the Alien Tort Statute Does Not Affirmatively and Clearly Evidence Extraterritorial Intent.
Neither can SMUG find any support (much less affirmative and clear support) for extraterritoriality within the structure of the Alien Tort Statute. The structure of the statute is relatively simple. It was enacted as part of the Judiciary Act of 1789, which, among other things, established the federal judiciary and defined the bounds if its jurisdiction. Exxon Mobil Corp., 654 F.3d at 45 (The Judiciary Act of 1789 ensured that there would be no gap in federal subjectmatter jurisdiction with regard to torts in violation of treaties or the law of nations). See also, William S. Dodge, The Historical Origins of the Alien Tort Statute: A Response to the "Originalists", 19 Hastings Int'l & Comp. L. Rev. 221, 222 (1996) (the Alien Tort Statute was enacted as the Alien Tort Clause a provision in Section 9 of the Judiciary Act of 1789). And, [w]hile the whole of the Judiciary Act served to confer broad jurisdiction over aliens upon the federal courts, the [Alien Tort Statute] conferred a unique type of jurisdiction: the power of an alien to sue another alien. Jarvis, 30 Pepp. L. Rev. at 676. Because the Judiciary Act was primarily devoted to defining the bounds of the judiciary, and particularly the bounds of federal subject-matter jurisdiction, its silence with respect to any extraterritorial application of the Alien Tort Clause is even more telling no such application was ever intended. 4. The Legislative History of the Alien Tort Statute Does Not Affirmatively and Clearly Evidence Extraterritorial Intent.
Because the Alien Tort Statute was an act of the First Congress, it is no surprise that there is no actual legislative history behind it. Dodge, 19 Hastings Int'l & Comp. L. Rev. at 222. In the absence of any clear legislative intent on a given statute, some courts have looked to the nature of the particular offense prescribed by that statute and the extent to which other legislative efforts had attempted to eliminate that same conduct. United States v. Bredimus, 234 F. Supp. 2d 639, 98
649 (N.D. Tex. 2002), aff'd, 352 F.3d 200 (5th Cir. 2003). As discussed above, the Alien Tort Statute, as part of the Judiciary Act, was the culmination of a series of legislative efforts designed to remedy the federal governments inability to deal with domestic infractions against the law of nations, specifically harms committed against ambassadors. Jarvis, 30 Pepp. L. Rev. at 677-79. The first and most significant event that prompted the need for such federal power involved the assault of a French official by a French citizen named Chevalier De Longchamps, on United States soil. Id. at 677. In response to this event, and [b]eing bereft of power to succor the enraged international community, Congress merely offered a reward for the miscreants apprehension and encouraged state authorities to prosecute him. Id. This modest effort by Congress to remedy this particular type of harm is strong evidence that the final culmination of the efforts, the Alien Tort Statute, was created for the purpose of conferring federal subject-matter jurisdiction over domestic claims by aliens. 61 At bottom, SMUG bears the burden of proving extraterritorial intent, and nothing in the text, context, structure or legislative history of the Alien Tort Statute provides any evidence, let alone the required affirmative and clear evidence, that the First Congress intended the statute to have extraterritorial effect. Accordingly, this Court must presume that there was no such intent, and should conclude that it has no subject-matter jurisdiction over SMUGs persecution claims. C. THIS COURT SHOULD NOT FOLLOW THE DECISIONS OF OTHER COURTS THAT HAVE OVERLOOKED OR DISREGARDED THE STRONG PRESUMPTION AGAINST EXTRATERRITORIALITY.
Bereft of any evidence of extraterritorial intent, SMUGs only recourse thus far has been, and will likely continue to be, to seek refuge in the decisions of other courts (not the First Circuit) that have either assumed extraterritoriality without actually considering it, or have disregarded
61
In addition to being relevant to the legislative history, the domestic De Longchamps incident provides additional powerful evidence that the context of the Alien Tort Statute, the second Carnero indicator, is decidedly domestic, not extraterritorial.
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the presumption against extraterritoriality altogether. (See SMUGs Opposition to Mr. Livelys Motion to Stay Proceedings, dkt. 18, pp. 7-9) (arguing that other courts have applied the Alien Tort Statute to extraterritorial conduct). However, this Courts analysis of its subject-matter jurisdiction under the Alien Tort Statute begins with a clean slate, for two reasons: (1) the First Circuit has not yet decided whether the statute reaches extraterritorial conduct; and (2) this Court need not follow the decisions of other courts that have overlooked or disregarded the strong presumption against extraterritoriality. The Supreme Court in Morrison dictated that no deference should be given to any case that has wrongly ignored or discarded the presumption against extraterritoriality. Id. at 2887-88; see also, Arabian Am. Oil Co., 499 U.S. at 260. More importantly, to the extent that courts have already applied the Alien Tort Statute extraterritorially, without expressly considering whether they could do so, the Supreme Court has held that those decisions are not binding on a subsequent court that eventually decides to expressly consider the issue. Arizona Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1448, __ U.S. __ (2011) (when questions of jurisdiction have been passed on in prior decisions sub silentio, this Court has never considered itself bound when a subsequent case finally brings the jurisdictional issue before us) (emphasis added) (internal quotation marks omitted) (quoting United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38 (1952)). The Supreme Court has cautioned strongly against blindly relying on assumptions that have gone unstated and unexamined. Winn, 131 S. Ct. at 1449. In fact, the High Court has recently gone even further, holding that the length of time during which courts have misapplied or failed to apply a canon of statutory construction is immaterial. Milner v. Dep't of Navy, 131 S. Ct. 1259, 1268, __ U.S. __ (2011). In Milner, a canon of statutory construction had been erroneously set-aside, misapplied and even ignored completely for thirty years. Id. The 100
proponent of that same erroneous position in Milner, as SMUG has done in this case, attempted to seize upon that fact, arguing that its position had been consistently relied upon and followed for thirty years by other lower courts. Id. The Supreme Court, however, was not impressed: this claim trips at the starting gate. It would be immaterial even if true, because we have no warrant to ignore clear statutory language on the ground that other courts have done so. Id. (emphasis added) (internal quotation marks omitted). Here too, SMUG trips at the starting gate by relying on non-binding Alien Tort Statute decisions which have either silently assumed extraterritorial jurisdiction, or have ignored the strong presumption against extraterritoriality. This Court should not make the same error. For example, SMUG has previously relied on the D.C. Circuits holding in Exxon Mobil, 654 F.3d 11. (Dkt. 18 at pp. 8-9). SMUGs reliance is misplaced for several reasons. First, decisions of the D.C. Circuit are not binding in the First Circuit. Second, the D.C. Circuit in Exxon Mobil was confused about the domestic nature of piracy claims actionable under the Alien Tort Statute, and assumed, mistakenly, that they were extraterritorial. Id. at 21. (See section XI(B)(2), supra, for discussion of piracy as a domestic crime). Third, and most importantly, although it gave lip-service to the presumption against extraterritoriality, the court in Exxon Mobil ultimately disregarded it, and certainly failed to engage in the text-context-structure-history analysis delineated by the First Circuit in Carnero. 654 F.3d at 20. Instead, the D.C. Circuit relied heavily on the extent to which other courts have been silent on the issue of extraterritoriality. Id. at 26 ([g]iven the Supreme Court's failure to disapprove of such lawsuits in Sosa). As discussed above, this is exactly the wrong approach, and the Supreme Court has specifically counseled against it.
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SMUG has also relied on the Seventh Circuits decision in Flomo v. Firestone Nat. Rubber Co., 643 F.3d 1013, 1025 (7th Cir. 2011), (dkt. 18, p. 8), but Flomo is equally unavailing. The Flomo court dispensed with the centuries-old presumption against extraterritorial application in one paragraph. 643 F.3d at 1025. Even there, the Seventh Circuit, like the D.C. Circuit in Exxon Mobil, relied not on evidence of a clear and affirmative congressional intent, but solely on the extent to which other courts have been silent on the issue of extraterritoriality. Id., at 1025. Not only is the Seventh Circuits decision per se not binding in the First Circuit, but the decision should be given no deference, because it relied on [a case] which ignored or discarded the presumption against extraterritoriality. Morrison, 130 S. Ct. at 2887-88. SMUGs previous reliance (dkt. 18, p. 9) on this Districts decision in Xuncax v. Gramajo, 886 F. Supp. 162, 193 (D. Mass. 1995) (WOODLOCK, J.) is also unavailing, because the district court there did not consider or apply the presumption against extraterritorial application. This court is not bound by a sub silentio exercise of jurisdiction. Winn, 131 S. Ct. at 1448. 62 Finally, SMUG has also relied on the Supreme Courts decision in Sosa as a basis for concluding that extraterritorial application of the Alien Tort Statute is acceptable. (Dkt. 18, p. 8). Sosa, however, did not address, much less decide, the issue of extraterritoriality. Exxon Mobil Corp., 654 F.3d at 20 (The issue of extraterritoriality, although briefed, was not decided in Sosa) (emphasis added). Like other courts, the Sosa Court ultimately assumed subject-matter jurisdiction over extraterritorial conduct sub silentio, which is in no way binding on it or other courts that choose to expressly examine the issue. Winn, 131 S. Ct. at 1448. However, while it left
In addition, the decisions of one judge within this District are not binding on the subsequent decisions of other judges. Camreta v. Greene, 131 S. Ct. 2020, 2033 n.7, __ U.S. __ (2011) (A decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case) (quoting 18 J. Moore et al., Moore's Federal Practice 134.02[1] [d], p. 13426 (3d ed.2011)) (internal quotation marks omitted).
62
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the extraterritoriality question open in Sosa, the Supreme Court now finally appears poised to decide it definitively in Kiobel v. Royal Dutch Petroleum, No. 10-1491. 63 In sum, none of the authorities upon which SMUG relies are binding on this Court or otherwise demonstrate that the First Congress intended for the Alien Tort Statute to apply outside of the United States. D. SMUG DOES NOT ALLEGE ANY DOMESTIC ACTIONABLE CONDUCT BY MR. LIVELY.
In its Opposition to Mr. Livelys Motion to Stay, SMUG alleged for the first time that much of [Mr. Livelys] actionable conduct took place in Springfield, Massachusetts. (Dkt. 18, p. 9). But the operative pleading here is SMUGs Amended Complaint, not its motion papers. Nowhere in the Amended Complaint does SMUG allege any actionable conduct by Mr. Lively in Springfield, Massachusetts, or anywhere else outside of Uganda, for that matter. Moreover, SMUGs insinuation that Mr. Lively has various contacts in this District by virtue of his residence ignores the Supreme Courts recent emphasis in Morrison that: it is a rare case of prohibited extraterritorial application that lacks all contact with the territory of the United States. But the presumption against extraterritorial application would be a craven watchdog indeed if it retreated to its kennel whenever some domestic activity is involved in the case.
As detailed in Mr. Livelys Motion to Stay, the Supreme Court has placed Kiobel on the calendar for reargument, specifically on the question of whether and under what circumstances the Alien Tort Statute, 28 U.S.C. 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States. (Dkt. 17, p. 4). SMUG has attempted to distinguish Kiobel on the grounds that it involves corporate (not individual) defendants, who are headquartered outside of the United States. (Dkt. 18, p. 2). The fact remains, however, that the Supreme Courts extraterritoriality concern in Kiobel correctly focuses on where the challenged conduct took place, and not where the defendants who, like Mr. Lively, have sufficient contacts with the United States to be subject to general jurisdiction here are headquartered. See e.g., Kiobel, No. 10-1491, Tr. Of Feb. 28, 2012 Oral Argument, at 7:7-9) (Justice Alito remarking there's no particular connection between the events here and the United States) (emphasis added). Moreover, if the Supreme Court finds that the Alien Tort Statute cannot be applied extraterritorially, such decision will foreclose not only claims against corporate defendants, such as the ones in Kiobel, but also claims against individuals, such as SMUGs claims against Mr. Lively here. Undoubtedly, Kiobel has at least the potential to significantly alter the course of this litigation, if not to derail it completely. (Dkt. 17).
63
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Morrison, 130 S. Ct. at 2884 (italics in original). Mr. Livelys residence is therefore irrelevant. Id. What matters is where the alleged persecution took place, and SMUG unequivocally alleges that all eight acts of alleged persecution took place in Uganda. (See pp. 4-8, supra). For the foregoing reasons, the Court should find that SMUG cannot overcome the strong presumption that the Alien Tort Statute does not reach extraterritorial conduct. The Court should dismiss with prejudice SMUGs persecution claims (Counts I, II and III) for lack of subjectmatter jurisdiction. CONCLUSION For the foregoing reasons, the Court should dismiss Plaintiffs Amended Complaint with prejudice. Respectfully submitted, Philip D. Moran (MA Bar # 353920) 265 Essex Street, Suite 202 Salem, Massachusetts 01970 Tel: (978) 745-6085 Fax: (978) 741-2572 Email: philipmoranesq@aol.com /s/ Horatio G. Mihet________________ Mathew D. Staver Admitted Pro Hac Vice Horatio G. Mihet Admitted Pro Hac Vice LIBERTY COUNSEL P.O. Box 540774 Orlando, FL 32854-0774 800-671-1776 Telephone 407-875-0770 Facsimile court@lc.org
Attorneys for Defendant Scott Lively
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was filed electronically with the Court on August 10, 2012. Service will be effectuated by the Courts electronic notification system upon all counsel or parties of record. /s/ Horatio G. Mihet________________ Horatio G. Mihet Attorney for Defendant Scott Lively
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Case: 13-2503 Case Document: 3:12-cv-30051-MAP 00116621208 Document Page: 175 83 Filed Date11/20/13 Filed: 12/06/2013 Page 1 of 19 Entry ID: 5785627
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS SPRINGFIELD DIVISION SEXUAL MINORITIES UGANDA, Plaintiff, v. SCOTT LIVELY, individually and as President of Abiding Truth Ministries, Defendant. : : : : : : : : : : CIVIL ACTION 3:12-CV-30051-MAP JUDGE MICHAEL A. PONSOR JURY TRIAL DEMANDED
DEFENDANT SCOTT LIVELYS ANSWER AND DEFENSES TO PLAINTIFFS FIRST AMENDED COMPLAINT For his answer to the First Amended Complaint (dkt. 27) (Complaint) filed by Plaintiff Sexual Minorities Uganda (SMUG), Defendant Scott Lively, individually and as President of Abiding Truth Ministries (collectively Lively) 1, denies, admits and avers as follows: As to Introduction 1) In response to paragraph 1 of SMUGs Complaint, Lively admits that he is a
United States citizen and resident, admits that he is an author and evangelical minister, and admits that he was licensed to practice law in California which license is currently on inactive status. Lively denies the allegations concerning SMUG for lack of knowledge or information sufficient to form a belief about their truth, and denies all other allegations in said paragraph. 2) In response to paragraph 2 of SMUGs Complaint, Lively admits that SMUG
purports to bring this case under the Alien Tort Statute, 28 U.S.C. 1350, but denies that SMUG
Lively avers that, to the extent any of the acts, omissions or conduct alleged throughout this Complaint were actually undertaken by him, they were undertaken solely in his capacity as an officer of Abiding Truth Ministries, a bona-fide corporation, and, as such, Lively cannot be held individually liable for said acts, omissions or conduct.
has stated any claim for relief, denies that the Court has subject-matter jurisdiction and denies all other allegations in said paragraph. 3) 4) Lively denies the allegations in paragraph 3 of SMUGs Complaint. In response to paragraph 4 of SMUGs Complaint, Lively admits that SMUG
purports to also bring tort claims under Massachusetts state law, but denies that SMUG has stated any claim for relief, denies that the Court has subject-matter jurisdiction, denies that SMUGs tort claims are governed by Massachusetts law, and denies all other allegations in said paragraph. 5) 6) Lively denies the allegations in paragraph 5 of SMUGs Complaint. Lively denies the allegations in paragraph 6 of SMUGs Complaint for lack of
knowledge or information sufficient to form a belief about their truth, and, in any event, denies that any of the complained of conduct, to the extent it ever occurred, can be causally connected to him. 7) In response to paragraph 7 of SMUGs Complaint, Lively admits that he visited
Uganda twice in 2002 on behalf of Abiding Truth Ministries, and denies all other allegations in said paragraph. 8) 9) Lively denies the allegations in paragraph 8 of SMUGs Complaint. In response to paragraph 9 of SMUGs Complaint, Lively admits that he firmly
and publicly opposed the harsh penalties proposed by the Anti-Homosexuality Bill, which was never enacted, and denies all other allegations in said paragraph. 10) In response to paragraph 10 of SMUGs Complaint, Lively admits that David
Kato is now dead because he was killed by a homosexual prostitute whom Kato hired for sexual
services but refused to pay, and denies all other allegations in said paragraph for lack of knowledge or information sufficient to form a belief about their truth. 11) 12) 13) Lively denies the allegations in paragraph 11 of SMUGs Complaint. Lively denies the allegations in paragraph 12 of SMUGs Complaint. In response to paragraph 13 of SMUGs Complaint, Lively admits that SMUG
seeks declaratory, compensatory, punitive and injunctive relief in this action, but denies that there any grounds for such relief, denies that the Court has subject-matter jurisdiction to provide such relief, denies that SMUG has standing to seek such relief, and denies all other allegations in said paragraph. 14) Lively denies the allegations in paragraph 14 of SMUGs Complaint. As to Jurisdiction and Venue 15) Lively denies the allegations in paragraph 15 of SMUGs Complaint, and
specifically denies that the Court has subject-matter jurisdiction. 16) In response to paragraph 16 of SMUGs Complaint, Lively admits that this Court
has personal jurisdiction over him, and denies all other allegations in said paragraph, and denies that this action is properly venued in this Court. As to Jury Demand 17) In response to paragraph 17 of SMUGs Complaint, Lively admits that SMUG
has demanded a trial by jury on each and every one of its claims. As to the Parties 18 20) Lively denies the allegations in paragraphs 18 through 20 of SMUGs
Complaint for lack of knowledge or information sufficient to form a belief about their truth. 21) Lively denies the allegations in paragraph 21 of SMUGs Complaint.
22)
In response to paragraph 22 of SMUGs Complaint, Lively admits that he is a
citizen of the United States and resident of Springfield, Massachusetts, admits that he is a writer and evangelical minister, admits that he was licensed to practice law in California which license is currently on inactive status, admits that he is a founder and President of Abiding Truth Ministries, admits that Abiding Truth Ministries operates the DefendtheFamily.com website and a Pro-Family Resource Center, and denies all other allegations in said paragraph. Further answering paragraph 22 of SMUGs Complaint, Lively avers that, to the extent any of the acts, omissions or conduct alleged throughout this Complaint were actually undertaken by him, they were undertaken solely in his capacity as an officer of Abiding Truth Ministries, a bona-fide corporation, and, as such, Lively cannot be held individually liable for said acts, omissions or conduct. 23) 24) Lively denies the allegations in paragraph 23 of SMUGs Complaint. In response to paragraph 24 of SMUGs Complaint, Lively admits that he, on
behalf of Abiding Truth Ministries, has authored or co-authored The Pink Swastika, The Poisoned Stream, and Redeeming the Rainbow, which works speak for themselves, and denies all other allegations in said paragraph. As to Factual Allegations, and As to An Overview of Alleged Persecution in Uganda 25) 26) Lively denies the allegations in paragraph 25 of SMUGs Complaint. Lively denies the allegations in paragraph 26 of SMUGs Complaint for lack of
knowledge or information sufficient to form a belief about their truth. 27) Lively denies the allegations in paragraph 27 of SMUGs Complaint.
28 33)
Lively denies the allegations in paragraphs 28 through 33 of SMUGs
Complaint for lack of knowledge or information sufficient to form a belief about their truth, and, in any event, denies that any of the complained of conduct, to the extent it ever occurred, can be causally connected to him. 34) In response to paragraph 34 of SMUGs Complaint, Lively admits that SMUG
and its constituents have had ample access to the Ugandan courts and justice system for the redress of their grievances, admits that SMUG has successfully employed the Ugandan courts and justice system to further its agenda, and denies all other allegations in said paragraph for lack of knowledge or information sufficient to form a belief about their truth. 35) 36) Lively denies the allegations in paragraph 35 of SMUGs Complaint. In response to paragraph 36 of SMUGs Complaint, Lively admits that he visited
Uganda in March 2009 on behalf of Abiding Truth Ministries, admits that he attended and spoke at a pro-family conference and spoke publicly to other groups and gatherings during his trip, admits that he exchanged conversational greetings with some members of the Ugandan Parliament, admits that the Ugandan media reported on his visit and speeches, and denies all other allegations in said paragraph. 37 38) In response to paragraphs 37 and 38 of SMUGs Complaint, Lively admits
that in 2009 the Ugandan Parliament briefly considered an Anti-Homosexuality Bill, which proposed law speaks for itself, admits that he publicly opposed this proposed law, admits that the proposed law has never been enacted, and denies all other allegations in said paragraphs. 39 42) Lively denies the allegations in paragraphs 39 through 42 of SMUGs
Complaint for lack of knowledge or information sufficient to form a belief about their truth, and,
in any event, denies that any of the complained of conduct, to the extent it ever occurred, can be causally connected to him. As to the Alleged Conspiracy/Joint Criminal Enterprise 43 45) Complaint. As to Scott Lively 46) Lively denies the allegations in paragraph 46 of SMUGs Complaint. In response to paragraphs 47 through 52 of SMUGs Complaint, Lively Lively denies the allegations in paragraphs 43 through 45 of SMUGs
47 52)
admits that he traveled to Uganda twice in 2002 on behalf of Abiding Truth Ministries, admits that during those visits he spoke publicly to pastors, university students and the Kampala City Council about his conventional Christian and biblical view on pornography and homosexuality, admits that he spoke in favor of the regulation of pornography, and denies all other allegations in said paragraphs. 53) 54) Lively denies the allegations in paragraph 53 of SMUGs Complaint. In response to paragraph 54 of SMUGs Complaint, Lively admits that prior to
2002 he wrote the book The Pink Swastika on behalf of Abiding Truth Ministries, which book speaks for itself, admits that he spoke about the book in Uganda, and denies all other allegations in said paragraph. 55 57) Complaint. 58 59) In response to paragraphs 58 and 59 of SMUGs Complaint, Lively admits Lively denies the allegations in paragraphs 55 through 57 of SMUGs
that he wrote the Defend the Family Activist Handbook on behalf of Abiding Truth Ministries for
pro-family volunteers in Latvia, which manuscript speaks for itself, and denies all other allegations in said paragraphs. 60) In response to paragraph 60 of SMUGs Complaint, Lively admits that he wrote
the book Redeeming the Rainbow on behalf of Abiding Truth Ministries, which book speaks for itself, and denies all other allegations in said paragraph. 61 63) In response to paragraphs 61 through 63 of SMUGs Complaint, Lively
admits that he, along with millions of other Christians worldwide who share a biblical worldview, is generally opposed to the expansion of non-discrimination laws to include sexual preference, sexual conduct or transgender status, admits that he has shared his views and opinions publicly, which writings and speeches speak for themselves, and denies all other allegations in said paragraphs. 64) 65) Lively denies the allegations in paragraph 64 of SMUGs Complaint. In response to paragraph 65 of SMUGs Complaint, Lively admits that he wrote
the book Redeeming the Rainbow on behalf of Abiding Truth Ministries, which book speaks for itself, and denies all other allegations in said paragraph. 66) In response to paragraph 66 of SMUGs Complaint, Lively admits that on January
10, 2010, Abiding Truth Ministries published a press release titled Defend the Family Intl Endorses Revised Uganda Bill, which statement speaks for itself, and denies all other allegations in said paragraph. 67) In response to paragraph 67 of SMUGs Complaint, Lively admits that on
October 15, 2007, he published on behalf of Abiding Truth Ministries an article titled Letter to the Russian People, which article speaks for itself, and denies all other allegations in said paragraph.
68 69)
In response to paragraphs 68 and 69 of SMUGs Complaint, Lively admits
that in 2009 the Ugandan Parliament considered an Anti-Homosexuality Bill, which proposed law speaks for itself, admits that he publicly opposed this proposed law, admits that the proposed law has never been enacted, and denies all other allegations in said paragraphs. 70) In response to paragraph 70 of SMUGs Complaint, Lively admits that in April
2012, he on behalf of Abiding Truth Ministries was interviewed by Roadkill Radio News, which interview speaks for itself, and denies all other allegations in said paragraph. 71) In response to paragraph 71 of SMUGs Complaint, Lively admits that
homosexual conduct and homosexual advocacy were illegal in Uganda long before his visits there, admits that they remain illegal today, and admits that Ugandan law on homosexuality has not changed since his visits to Uganda. Lively denies all other allegations in said paragraph for lack of knowledge or information sufficient to form a belief about their truth, and, in any event, denies that any of the complained of conduct, to the extent it ever occurred, can be causally connected to him. 72) In response to paragraph 72 of SMUGs Complaint, Lively admits that he wrote
the book Redeeming the Rainbow on behalf of Abiding Truth Ministries, which book speaks for itself, and denies all other allegations in said paragraph. 73 74) Complaint. 75) In response to paragraph 75 of SMUGs Complaint, Lively admits that on behalf Lively denies the allegations in paragraphs 73 and 74 of SMUGs
of Abiding Truth Ministries he attended and spoke at a pro-family conference in Kampala, Uganda in March 2009, and denies all other allegations in said paragraph.
76 79)
In response to paragraphs 76 through 79 of SMUGs Complaint, Lively
admits that on behalf of Abiding Truth Ministries he wrote publicly about his 2009 visit to Uganda, which writings speak for themselves, and denies all other allegations in said paragraphs. 80 82) In response to paragraphs 80 through 82 of SMUGs Complaint, Lively
admits that on behalf of Abiding Truth Ministries he attended and spoke at a pro-family conference in Kampala, Uganda in March 2009, but denies that SMUG has accurately described Livelys speech at the conference, and denies all other allegations in said paragraphs. 83 84) Lively denies the allegations in paragraphs 83 and 84 of SMUGs
Complaint for lack of knowledge or information sufficient to form a belief about their truth, and, in any event, denies that any of the complained of conduct, to the extent it ever occurred, can be causally connected to him. 85) In response to paragraph 85 of SMUGs Complaint, Lively admits that on behalf
of Abiding Truth Ministries he was interviewed by Roadkill Radio News regarding his 2009 visit to Uganda, which interview speaks for itself, and denies all other allegations in said paragraph. 86) In response to paragraph 86 of SMUGs Complaint, Lively admits that on behalf
of Abiding Truth Ministries he reviewed and commented upon a draft of the Anti-Homosexuality Bill considered by the Ugandan Parliament, admits that his comments were to urge departure from the bills proposed penalties, admits that the proposed law has never been enacted, and denies all other allegations in said paragraph. 87) Lively denies the allegations in paragraph 87 of SMUGs Complaint. In response to paragraphs 88 through 90 of SMUGs Complaint, Lively
88 90)
admits that on behalf of Abiding Truth Ministries he wrote publicly and was interviewed about
his 2009 visit to Uganda, which writings and interviews speak for themselves, and denies all other allegations in said paragraphs. 91) 92) Lively denies the allegations in paragraph 91 of SMUGs Complaint. In response to paragraph 92 of SMUGs Complaint, Lively admits that he wrote
an articled entitled Murdering Uganda on behalf of Abiding Truth Ministries, which article speaks for itself, and denies all other allegations in said paragraph. 93) Lively denies the allegations in paragraph 93 of SMUGs Complaint. As to Stephen Langa 94) In response to paragraph 94 of SMUGs Complaint, Lively admits that he has in
the past called Stephen Langa a good friend and ministry partner, denies for lack of knowledge or information sufficient to form a belief about their truth the allegations regarding Mr. Langas current title(s) and position(s), and denies all other allegations in said paragraph. 95 96) Complaint. 97 99) Lively denies the allegations in paragraphs 97 through 99 of SMUGs Lively denies the allegations in paragraphs 95 and 96 of SMUGs
Complaint for lack of knowledge or information sufficient to form a belief about their truth, and, in any event, denies that any of the complained of conduct, to the extent it ever occurred, can be causally connected to him. 100 102) Complaint. 103) In response to paragraph 103 of SMUGs Complaint, Lively admits that he visited Lively denies the allegations in paragraphs 100 through 102 of SMUGs
Uganda in March 2009 on behalf of Abiding Truth Ministries, admits that on this visit he spoke
10
publicly with some members of the Ugandan Parliament and others, admits that the Ugandan media reported on his visit and speeches, and denies all other allegations in said paragraph. 104 111) Lively denies the allegations in paragraphs 104 through 111 of SMUGs
Complaint for lack of knowledge or information sufficient to form a belief about their truth, and, in any event, denies that any of the complained of conduct, to the extent it ever occurred, can be causally connected to him. 112) Lively denies the allegations in paragraph 112 of SMUGs Complaint. Lively denies the allegations in paragraphs 113 through 116 of SMUGs
113 116)
Complaint for lack of knowledge or information sufficient to form a belief about their truth, and, in any event, denies that any of the complained of conduct, to the extent it ever occurred, can be causally connected to him. 117) In response to paragraph 117 of SMUGs Complaint, Lively admits that an Anti-
Homosexuality Bill was reintroduced in the Ugandan Parliament in 2012, which proposed law speaks for itself, admits that he publicly opposed this proposed law, admits that the proposed law has never been enacted, and denies all other allegations in said paragraph. 118) Lively denies the allegations in paragraph 118 of SMUGs Complaint for lack of
knowledge or information sufficient to form a belief about their truth, and, in any event, denies that any of the complained of conduct, to the extent it ever occurred, can be causally connected to him. As to Martin Ssempa 119) In response to paragraph 119 of SMUGs Complaint, Lively admits that Martin
Ssempa is pastor and founder of the Makerere Community Church in Kampala, Uganda, admits
11
that Lively has described Mr. Ssempa as a leading media figure in Uganda, and denies all other allegations in said paragraph. 120 128) Lively denies the allegations in paragraphs 120 through 128 of SMUGs
Complaint for lack of knowledge or information sufficient to form a belief about their truth, and, in any event, denies that any of the complained of conduct, to the extent it ever occurred, can be causally connected to him. 129) In response to paragraph 129 of SMUGs Complaint, Lively admits that Mr.
Ssempa was present for part of the March 2009 pro-family conference in Kampala, Uganda, and denies all other allegations in said paragraph. 130 138) Lively denies the allegations in paragraphs 130 through 138 of SMUGs
of Abiding Truth Ministries he gave an interview to Current TV about Uganda, which interview speaks for itself, and denies all other allegations in said paragraph. 140) In response to paragraph 140 of SMUGs Complaint, Lively admits that on behalf
of Abiding Truth Ministries on one occasion he sent one open letter to Mr. Bahati through Mr. Ssempa, which letter speaks for itself, admits that the letter was publicly posted on the DefendtheFamily.com website, admits that the letter urged departure from the harsh penalties proposed in the draft Anti-Homosexuality Bill which was never enacted, and denies all other allegations in said paragraph.
12
As to James Nsaba Buturo 141 142) Lively denies the allegations in paragraphs 141 and 142 of SMUGs
of Abiding Truth Ministries he met briefly with Mr. Buturo in Uganda in March 2009, admits that he has publicly acknowledged this brief interaction, and denies all other allegations in said paragraph. 144) Lively denies the allegations in paragraph 144 of SMUGs Complaint for lack of
knowledge or information sufficient to form a belief about their truth. 145) In response to paragraph 145 of SMUGs Complaint, Lively denies that he
advocated forced conversion therapy, and denies all other allegations in said paragraph for lack of knowledge or information sufficient to form a belief about their truth. 146 156) Lively denies the allegations in paragraphs 146 through 156 of SMUGs
Complaint for lack of knowledge or information sufficient to form a belief about their truth, and, in any event, denies that any of the complained of conduct, to the extent it ever occurred, can be causally connected to him. As to David Bahati 157) In response to paragraph 157 of SMUGs Complaint, Lively admits that David
Bahati is a member of Ugandas Parliament, and denies all other allegations in said paragraph for lack of knowledge or information sufficient to form a belief about their truth.
13
158)
Lively denies the allegations in paragraph 158 of SMUGs Complaint for lack of
knowledge or information sufficient to form a belief about their truth. 159) In response to paragraph 159 of SMUGs Complaint, Lively admits that in 2009
Mr. Bahati introduced an Anti-Homosexuality Bill in the Ugandan Parliament, admits that Lively publicly opposed this proposed law, admits that the proposed law has never been enacted, and denies all other allegations in said paragraph. 160) In response to paragraph 160 of SMUGs Complaint, Lively denies that he
supported or encouraged the Anti-Homosexuality Bill as first introduced by Mr. Bahati, and denies all other allegations in said paragraph for lack of knowledge or information sufficient to form a belief about their truth. 161) In response to paragraph 161 of SMUGs Complaint, Lively admits that on behalf
of Abiding Truth Ministries he reviewed and commented upon a draft of the Anti-Homosexuality Bill considered by the Ugandan Parliament, admits that his comments were to urge departure from the bills proposed penalties, admits that the proposed law has never been enacted, and denies all other allegations in said paragraph. 162 164) Lively denies the allegations in paragraphs 162 through 164 of SMUGs
Complaint for lack of knowledge or information sufficient to form a belief about their truth, and, in any event, denies that any of the complained of conduct, to the extent it ever occurred, can be causally connected to him. As to the Alleged Severe Deprivation of Fundamental Rights 165 220) Lively denies the allegations in paragraphs 165 through 220 of SMUGs
Complaint for lack of knowledge or information sufficient to form a belief about their truth, and,
14
in any event, denies that any of the complained of conduct, to the extent it ever occurred, can be causally connected to him. 221) In response to paragraph 221 of SMUGs Complaint, Lively admits that SMUG
and its constituents have had ample access to the Ugandan courts and justice system for the redress of their grievances, admits that SMUG has successfully employed the Ugandan courts and justice system to further its agenda, and denies all other allegations in said paragraph for lack of knowledge or information sufficient to form a belief about their truth. 222) In response to paragraph 222 of SMUGs Complaint, Lively admits that David
Kato was killed by a homosexual prostitute whom Kato hired for sexual services but refused to pay, and denies all other allegations in said paragraph for lack of knowledge or information sufficient to form a belief about their truth. 223 228) Lively denies the allegations in paragraphs 223 through 228 of SMUGs
Complaint for lack of knowledge or information sufficient to form a belief about their truth, and, in any event, denies that any of the complained of conduct, to the extent it ever occurred, can be causally connected to him. As to General Allegations Common to All Counts 229) In response to paragraph 229 of SMUGs Complaint, Lively re-alleges and
incorporates by reference his responses to the incorporated paragraphs. 230 235) Complaint. As to First Claim for Relief 236) In response to paragraph 236 of SMUGs Complaint, Lively re-alleges and Lively denies the allegations in paragraphs 230 through 235 of SMUGs
incorporates by reference his responses to the incorporated paragraphs.
15
237 239) Complaint.
Lively denies the allegations in paragraphs 237 through 239 of SMUGs
As to Second Claim for Relief 240) In response to paragraph 240 of SMUGs Complaint, Lively re-alleges and
incorporates by reference his responses to the incorporated paragraphs. 241 245) Complaint. As to Third Claim for Relief 246) In response to paragraph 246 of SMUGs Complaint, Lively re-alleges and Lively denies the allegations in paragraphs 241 through 245 of SMUGs
incorporates by reference his responses to the incorporated paragraphs. 247 250) Complaint. As to Fourth Claim for Relief 251) In response to paragraph 251 of SMUGs Complaint, Lively re-alleges and Lively denies the allegations in paragraphs 247 through 250 of SMUGs
incorporates by reference his responses to the incorporated paragraphs. 252 256) Complaint. As to Fifth Claim for Relief 257) In response to paragraph 257 of SMUGs Complaint, Lively re-alleges and Lively denies the allegations in paragraphs 252 through 256 of SMUGs
incorporates by reference his responses to the incorporated paragraphs. 258 262) Complaint. Lively denies the allegations in paragraphs 258 through 262 of SMUGs
16
RESIDUAL DENIAL 263) Lively denies each and every allegation in SMUGs Complaint other than those
specifically admitted above. ADDITIONAL DEFENSES 1) 2) 3) Complaint. 4) Complaint. 5) SMUGs Complaint is barred by the extraterritorial limitation enunciated in SMUG lacks individual and/or associational standing to seek the relief in its SMUGs Complaint fails to state a cause of action. This Court lacks subject-matter jurisdiction over SMUGs Complaint. SMUG lacks individual and/or associational standing to bring the claims in its
Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013), and its progeny. 6) Constitution. 7) 8) 9) 10) parties. 11) 12) 13) SMUGs Complaint is barred by the act of state doctrine. SMUGs Complaint is barred by the political question doctrine. SMUGs Complaint is barred by SMUGs failure to exhaust domestic remedies in SMUGs Complaint is barred by the applicable statute(s) of limitations. SMUGs Complaint is barred by the doctrine of laches. SMUGs Complaint is barred by the doctrine of forum non conveniens. SMUGs Complaint is barred by its failure to join necessary and indispensible SMUGs Complaint is barred by the First Amendment to the United States
its own country.
17
14) 15) 16)
SMUGs Complaint is barred by the doctrine of international comity. SMUGs Complaint is barred by the foreign affairs doctrine. SMUGs Complaint is barred by the Foreign Sovereign Immunities Act, and/or
the doctrines of diplomatic immunity and/or head-of-state immunity. 17) SMUGs Alien Tort Statute claims against Scott Lively are barred because Lively,
individually or as President of Abiding Truth Ministries, is not a state actor. 18) SMUGs Alien Tort Statute claims against Scott Lively, as President of Abiding
Truth Ministries, are barred because international law does not recognize such claims against corporations. 19) SMUGs Complaint against Scott Lively, individually, is barred as a matter of law
because, to the extent any of the acts, omissions or conduct alleged throughout this Complaint were actually undertaken by Lively, they were undertaken solely in his capacity as an officer of Abiding Truth Ministries, a bona-fide corporation, and, as such, Lively cannot be held individually liable for said acts, omissions or conduct. 20) SMUGs negligence claim against Scott Lively is barred by SMUGs assumption
of risk and/or contributory and/or comparative negligence. 21) conduct. 22) SMUGs Complaint against Scott Lively is barred because, to the extent Lively SMUGs Complaint against Scott Lively is barred by illegality of SMUGs
committed any of the acts or omissions alleged therein, he did not do so with the requisite level of intent. 23) SMUGs injuries or damages, if any, were caused by independent third parties.
18
WHEREFORE, Lively respectfully prays that SMUG take nothing by its Complaint, that the Complaint be dismissed with prejudice, and that Lively be awarded his reasonable costs and fees for defending against this action, together will all such other and further relief as the Court deems proper. DEMAND FOR JURY TRIAL Lively hereby demands a trial by jury on each and every issue that is so triable, and by the maximum number of jurors allowed by law.
Respectfully submitted, Philip D. Moran (MA Bar # 353920) 265 Essex Street, Suite 202 Salem, Massachusetts 01970 Tel: (978) 745-6085 Fax: (978) 741-2572 Email: philipmoranesq@aol.com /s/ Horatio G. Mihet________________ Mathew D. Staver Admitted Pro Hac Vice Stephen M. Crampton Admitted Pro Hac Vice Horatio G. Mihet Admitted Pro Hac Vice LIBERTY COUNSEL P.O. Box 540774 Orlando, FL 32854-0774 800-671-1776 Telephone 407-875-0770 Facsimile court@lc.org Attorneys for Defendant Scott Lively
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was filed electronically with the Court on November 20, 2013. Service will be effectuated by the Courts electronic notification system upon all counsel or parties of record. /s/ Horatio G. Mihet________________ Horatio G. Mihet Attorney for Defendant Scott Lively 19
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS SEXUAL MINORITIES UGANDA, Plaintiff v. SCOTT LIVELY, Defendant ) ) ) ) ) ) )
C.A. No. 12-cv-30051-MAP
MEMORANDUM AND ORDER REGARDING DEFENDANTS MOTIONS TO DISMISS (Dkt. Nos. 21 & 30) August 14, 2013 PONSOR, U.S.D.J. I. INTRODUCTION Plaintiff Sexual Minorities Uganda is an umbrella organization located in Kampala, Uganda, comprising member organizations that advocate for the 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 residing in Springfield, Massachusetts who, according to the complaint, holds himself out to be an expert on what he terms the gay movement. (Dkt. No. 27, Am. Compl. 1.) Lively is also alleged to be
an attorney, author, and evangelical minister. Plaintiff alleges that in concert with others Defendant -- through actions taken both within the United States and in Uganda -- has attempted to foment, and to a substantial degree has succeeding in fomenting, an atmosphere of harsh and frightening repression against LGBTI people in Uganda. The complaint asserts five counts, three invoking the jurisdiction of the federal Alien Tort Statute, 28 U.S.C. 1350 (ATS), and two under state law. Plaintiff seeks
compensatory, punitive, and exemplary damages; declaratory relief holding that Defendants conduct has been in violation of the law of nations; and injunctive relief enjoining Defendant from undertaking further actions, and from plotting and conspiring with others, to persecute Plaintiff and the LGBTI community in Uganda. Defendant has filed two motions to dismiss, offering in essence five arguments.1
1
First, the court lacks
Defendant filed his first motion to dismiss (Dkt. No. 21) based on Plaintiffs original complaint (Dkt. No. 1). Subsequently, Plaintiff filed a First Amended Complaint. (Dkt. No. 27.) Defendant has now moved to dismiss the Amended Complaint. (Dkt. No. 30.) Because the Amended Complaint is now the operative pleading, the court will focus on the arguments raised in Defendants second motion to dismiss.
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jurisdiction because international norms do not bar persecution based on sexual orientation or gender identity with sufficient clarity and historical lineage to make it one of the narrow set of claims for which the ATS furnishes jurisdiction. Second, the court cannot recognize a claim
under the ATS for actions taken outside the United States, as the Supreme Court has recently held in Kiobel v. Royal Dutch Petroleum, 133 S. Ct. 1659 (2013). Third, Plaintiff
lacks standing to bring this case either on behalf of itself as an organization or on behalf of members of the LGBTI community in Uganda. Fourth, the right of free speech
described in the First Amendment to the United States Constitution prohibits any attempt by Plaintiff to restrict expression, however distasteful, through court action. Finally, the two claims asserted under Massachusetts state law lack any adequate legal foundation. For the reasons set forth at length below, none of these arguments is persuasive. As to the first argument,
many authorities implicitly support the principle that widespread, systematic persecution of individuals based on their sexual orientation and gender identity constitutes a
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crime against humanity that violates international norms. It is a somewhat closer question whether this crime constitutes what Justice Souter has termed one of the relatively modest set of actions alleging violations of the law of nations for which the ATS furnishes jurisdiction. Sosa v. Alvarez-Machain, 542 U.S. 692, 720 (2004). However,
aiding and abetting a crime against humanity is a wellestablished offense under customary international law, and actions for redress of this crime have frequently been recognized by American courts as part of the subclass of lawsuits for which the ATS furnishes jurisdiction. Given
this, the allegations set forth in the Amended Complaint are more than adequate at this stage to require denial of Defendants motion to dismiss. Moreover, given the
elasticity of the legal standard for ATS jurisdiction, it is fairer and more prudent to address the Sosa issue on a fully developed record, following discovery. Second, the restrictions established in Kiobel on extraterritorial application of the ATS do not apply to the facts as alleged in this case, where Defendant is a citizen of the United States and where his offensive conduct is
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alleged to have occurred, in substantial part, within this country. Indeed, Defendant, according to the Amended
Complaint, is alleged to have maintained what amounts to a kind of Homophobia Central in Springfield, Massachusetts. He has allegedly supported and actively participated in worldwide initiatives, with a substantial focus on Uganda, aimed at repressing free expression by LGBTI groups, destroying the organizations that support them, intimidating LGBTI individuals, and even criminalizing the very status of being lesbian or gay.2 Kiobel makes clear that its
restrictions on extraterritorial application of American law do not apply where a defendant and his or her conduct are based in this country. Third, clear authority supports Plaintiffs standing here. Fourth, the argument that Defendants actions have
constituted mere expression protected under the First Amendment is, again, premature. Accepting the allegations
of the complaint, as the court must at this stage, It is important to emphasize that the court at this stage is drawing its summary of facts from the allegations of the Amended Complaint, some of which describe despicable opinions and conduct by Defendant. Defendant denies a number of these claims; Plaintiff will bear the burden of proving them at trial.
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sufficient facts are alleged, with specific names, dates, and actions, to support the claim that Defendants behavior crossed well over any protective boundary established by the First Amendment. Fifth, and finally, the arguments
attacking the claims under Massachusetts state law have not been convincingly developed. Having denied the motions to
dismiss the federal claims, the court will retain the state law claims pending discovery and, if appropriate, reconsider them on a fuller record in connection with a motion for summary judgment. II. FACTS3 The essence of the claims before the court, expatiated in the Amended Complaints detailed recitation of allegations, is that Defendant Scott Lively along with others in Uganda devised and carried out a program of persecution aimed at Plaintiffs organization and its The factual background is drawn from the allegations contained in Plaintiffs Amended Complaint (Dkt. No. 27). Because this is a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court accept[s] as true all well-pleaded facts, analyz[es] those facts in the light most hospitable to the plaintiff's theory, and draw[s] all reasonable inferences for the plaintiff. See United States ex rel. Hutcheson v. Blackstone Med., Inc., 647 F.3d 377, 383 (1st Cir. 2011), cert. denied 132 S. Ct. 815 (2011).
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members based on their sexual orientation and gender identity. The Amended Complaint describes a campaign of
harassment and intimidation, and a resulting atmosphere of fear, that Defendant is alleged, in active concert with others, to have directed at the LGBTI community in Uganda. According to Plaintiff, Defendant helped coordinate, implement, and justify strategies to dehumanize, demonize, silence, and further criminalize the LGBTI community in Uganda. (Dkt. No. 27, Am. Compl. 7.)
The Amended Complaint identifies a group of Ugandans with whom Defendant is alleged to have worked closely to carry out his decade-long persecutory campaign. (Dkt. No. 27, Am. Compl. 25.) These individuals allegedly include: Stephen Langa, the Executive Director of the Family Life Network and the Director of the Ugandan branch of the Arizona-based Disciple Nations Alliance; Martin Ssempa, Ugandan pastor, involved in implementing Ugandas HIV/AIDS policy from as early as 2003; James Buturo, Ugandan Minister of Information and Broadcasting for the President (2001-2006) and Minister of Ethics and Integrity in the Office of the Vice-7-
President (2006-2011); David Bahati, member of Parliament and sponsor of legislation entitled the Anti-Homosexuality Bill; and Simon Lokodo, current Minister of Ethics and Integrity. According to the Amended Complaint, Defendant came to Uganda in 2002 when he participated in the countrys first anti-LGBTI conference. In March 2002, Defendant spoke at a
gathering organized by Langa about the supposed links between pornography and homosexuality. Several months later
in June 2002, Defendant returned to Uganda to participate in additional speaking events and media appearances organized by Langa. These appearances were designed, again, to
headline the purported link between pornography and homosexuality. During this trip, Defendant and Langa also held an allday invitation-only pastors conference. Defendant later
wrote that the pastors in attendance were very grateful for the insights I was able to give them about the way in which America was brought low by homosexual activism. 27, Am. Compl. 50.) (Dkt. No.
Defendant also addressed students at
several universities and high schools where he blamed the

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so-called gay movement for the dangerous effects of a porn culture. (Dkt. No. 27, Am. Compl. 51.) Defendant
also met with the Kampala City Council. Defendant has stated, according to the Amended Complaint, that these appearances and meetings in 2002 made him instrumental in the efforts by Langa and Ssempa, not only to create a rhetorical platform for Ugandas anti-LGBTI campaign of persecution, but to craft specific initiatives designed to repress and intimidate LGBTI people and organizations advocating on their behalf. Compl. 56.) Plaintiff alleges that between 2002 and 2009 Defendant continued to work from the United States with Langa and Ssempa to assist, encourage, and consult with them to design and then carry out specific actions to deny fundamental rights to the LGBTI community in Uganda. During this time, (Dkt. No. 27, Am.
Ssempa was involved in formulating the Ugandan HIV/AIDS policy. In this role, he took action to exclude LGBTI Ssempa also publicly
persons from the programs assistance.
posted the names of LGBTI rights advocates -- labeled as homosexual promoters -- as well as pictures of them with
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their contact information, as part of a campaign of intimidation. For his part, Defendant began developing and disseminating strategies to be used to discriminate against and persecute LGBTI communities in Uganda and elsewhere. In
pursuit of this, he published two books, Defend the Family: Activist Handbook and Redeeming the Rainbow. The books
presented a comprehensive plan of action designed to repress the so-called gay movement, which he described as the most dangerous social and political movement of our time. (Dkt. No. 27, Am. Compl. 57-60.) The two primary tactics
advocated by Defendant were criminalizing advocacy -- that is, subjecting any public expressions of support for the LGBTI community to criminal prosecution -- and attributing to LGBTI individuals a compulsion to sexually abuse children. In July 2005, the police unlawfully raided the home of Victor Mukasa, a transgender LGBTI advocate and founder of Plaintiff Sexual Minorities Uganda, seized a number of documents as well as hard-copy and electronic files, and arrested Mukasas guest, Yvonne Oyo.
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Oyo was taken to the
police station where she was forced to remove her clothing in front of male officials to prove her sex. 27, Am. Compl. 30.) (Dkt. No.
Police then sexually assaulted Oyo by
touching and fondling her breasts. Over three years following the raid, in December 2008, the High Court of Uganda issued a well-publicized ruling arising out of the raid of Mukasas home and the arrest and abuse of Oyo. The High Court held that gays and lesbians,
like anyone else, could challenge the unlawful conduct of authorities. The High Court also awarded damages to Oyo for
the violation of her right to protection from torture and cruel, inhuman, and degrading treatment under Article 24 of the Ugandan Constitution. The High Court also awarded
damages to Mukasa for the violation of his right to privacy of person, home, and property guaranteed by Article 27 of the Ugandan Constitution. Plaintiff alleges that this High Court decision had the effect of spurring Defendant, in coordination with his coconspirators in Uganda, to intensify the campaign of persecution against members of the LGBTI community. Less
than three months after the High Court decision, in March

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2009, Langa hosted an anti-gay conference entitled, Seminar on Exposing the Homosexual Agenda. The conference was
attended by a number of Ugandan religious and government leaders, parliamentarians, police officers, and teachers. Defendant traveled to Uganda to speak as one of the headliners at this conference. During this visit, Defendant
met with parliamentarians and government officials including Buturo, made media appearances, and spoke at seminars at schools and churches. According to the Amended Complaint, Defendant continued his attacks on gay and lesbian people, some of them bordering on ludicrous. Defendant charged, for example,
that homosexuals were behind the rise of Nazism and the genocide in Rwanda. (Dkt. No. 27, Am. Compl. 8, 24, 54, 82, 93.)4 Other accusations were aimed at playing on
parents fears, such as the bogus claims that gay and
In his book The Pink Swastika: Homosexuality in the Nazi Party, Defendant argued that the rise of Nazism, with its resultant horrors, was engineered and driven by a violent and fascistic gay movement in Germany. In other works, he has blamed homosexuals for other historical atrocities including the Spanish Inquisition, the French Reign of Terror, South African apartheid, American slavery, and the Rwandan genocide. (Dkt. No. 27, Am. Compl. 24.)
4
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lesbian people had a compulsion to sexually abuse children and that they were engaged in a campaign to recruit Ugandan children as homosexuals. 36-39, 65, 72-74, 81, 82, 93.) Defendant also allegedly formulated and promoted specific strategies to further deprive the LGBTI community of its basic human rights, including freedom of expression and protection of life, liberty, and property. Defendant, (Dkt. No. 27, Am. Compl.
according to Plaintiff, has acknowledged that his 2009 efforts in Uganda were based on his book Redeeming the Rainbow, which advocates criminalizing advocacy on behalf of LGBTI people and attributing acts of sexual violence against children to LGBTI individuals purported obsession with pedophilia. Nor were Defendants efforts without effect.
Defendant boasted that an associate was told that our campaign was like a nuclear bomb against the gay agenda in Uganda. (Dkt. No. 27, Am. Compl. 88.) According to the Amended Complaint, partly as a result of Defendants efforts to incite fear and hatred against LGBTI people, on April 29, 2009, an Anti-Homosexuality Bill was introduced in the Ugandan Parliament.
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The bill proposed
the death penalty for crimes of aggravated homosexuality, including execution for repeat offenders of homosexuality. (Dkt. No. 27, Am. Compl. 37.) The bill
also proposed to criminalize any advocacy on behalf of the LGBTI community as the promotion of homosexuality. This
type of repression of any public support for equal treatment of gays and lesbians was precisely what Defendant advocated in his speeches and writings and the strategy he was helping his co-conspirators in Uganda to promulgate. The bill was revised and expanded in October 2009 by co-conspirator and member of Parliament, David Bahati. The
revised bill left the death penalty provisions and expanded the criminalization of association with or advocacy for LGBTI individuals. The adoption of this legislation would
have turned Uganda into a virtual anti-gay police state, making it a crime punishable by imprisonment, for example, for a Ugandan to fail to report to the police any person whom he or she suspects is a homosexual or involved in advocacy related to homosexuality. 9.) The Amended Complaint alleges that Defendant has
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(Dkt. No. 27, Am. Compl.
acknowledged that he reviewed and commented on a draft of the Anti-Homosexuality Bill before it was introduced, communicating with the leadership in the Ugandan Parliament through Ssempa. Defendant returned to Uganda in 2009 to
help efforts to strengthen the law and embolden leaders so that when the law came out theyd have an easier time implementing it. (Dkt. No. 27, Am. Compl. 85.)
The Amended Complaint notes that, while the AntiHomosexuality Bill did not pass, the level of LGBTI persecution from governmental and media sources increased. With Defendants active assistance Langa, Ssempa, Buturo, and Bahati continued to sensationalize in lurid terms the threat LGBTI individuals purportedly posed to children. Media outings of LGBTI individuals became more frequent and were accompanied with continued incendiary claims that LGBTI people posed a danger to children. In one case, a tabloid
accompanied the photos of gay and lesbian people with the headline Hang Them. The Ugandan High Court issued a permanent injunction in January 2011 to prevent newspapers from identifying LGBTI individuals and requiring the tabloid to pay damages to
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persons whose photos were depicted.
Nevertheless, in the
wake of public disclosures and police harassment, a number of activists, including Plaintiffs current Executive Director, were forced to leave Uganda or go into hiding. Despite the High Court rulings, Ugandan police and government officials have more recently continued efforts to repress any advocacy on behalf of LGBTI people, as Defendants writings urge. In 2012, at least two gatherings Both raids
of LGBTI advocates were raided and disbanded.
were ordered by Simon Lokodo, the current Minister of Ethics and Integrity. Lokodo has threatened advocates with arrest After the February 2012
for promotion of homosexuality.
raid, Lokodo referred to the advocates as terrorists. Lokodo has stated that the raids and arrests were ordered so that everybody else will know that at least in Uganda we have no room here for homosexuals and lesbians. 27, Am. Compl. 41, 165-85.) (Dkt. No.
Subsequently, Plaintiff has
not been permitted to register as a non-governmental organization. The five-count Amended Complaint asserts jurisdiction under the Alien Tort Statute, 28 U.S.C. 1350 (ATS), as
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well as federal question jurisdiction ( 1331), diversity jurisdiction ( 1332), and supplemental jurisdiction ( 1367). The five counts allege: (I) crimes against humanity
of persecution, based on individual responsibility under the ATS; (II) crimes against humanity of persecution, based on a joint criminal enterprise under the ATS; (III) crimes against humanity of persecution, based on conspiracy under the ATS; (IV) civil conspiracy under Massachusetts state law; and (V) negligence under Massachusetts state law. Plaintiff seeks compensatory, punitive, and exemplary damages; declaratory relief holding that Defendants conduct was in violation of the law of nations; and injunctive relief enjoining Defendant from undertaking further actions, and from plotting and conspiring with others, to persecute Plaintiff and the LGBTI community in Uganda. III. DISCUSSION As noted, Plaintiff has invoked jurisdiction for this lawsuit, in part, under the Alien Tort Statute. This
statute, passed as part of the Judiciary Act of 1789, is terse, stating simply: The district courts shall have original jurisdiction of any civil action by an alien for a
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tort only, committed in violation of the law of nations or a treaty of the United States. 28 U.S.C. 1350. Defendant
has raised two independent challenges to the courts ability to recognize a cause of action under the ATS in his motion to dismiss. First, Defendant points out that the ATS furnishes jurisdiction only where the international law norm is sufficiently definite and historically rooted to support the asserted cause of action. 692, 732 (2004). Sosa v. Alvarez-Machain, 542 U.S.
In other words, even where a colorable
claim for a violation of current international norms is adequately set forth, a further question must be confronted: is this cause of action among the modest number of international law violations with a potential for personal liability for which jurisdiction adheres under the ATS? Sosa, 542 U.S. at 724. Defendant argues, in essence, that
the Amended Complaint sets out no adequate claim for a violation of any international norm, and, even if it does, the alleged violation does not fall within the small group of claims for which the ATS furnishes jurisdiction. Second, Defendant cites Kiobel v. Royal Dutch
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Petroleum, 133 S. Ct. 1659 (2013), as support for the argument that Plaintiff has no claim under the ATS in any event, given the presumption against extraterritoriality described by Chief Justice Roberts in his majority opinion. In addition to the two arguments specifically directed at the courts ability to recognize a claim under the ATS, Defendant contends that Plaintiff lacks standing to bring this suit. He further takes the position that all of the
allegations set forth in the Amended Complaint target speech protected by the First Amendment and therefore cannot form the basis of any lawsuit against him. Finally, Defendant
challenges the application of Massachusetts state law, based on the statute of limitations and the sufficiency of the pleadings. The discussion below will begin by addressing
the ATS-related arguments, then move to Defendants other contentions. A. Persecution Under the Alien Tort Statute. Plaintiff alleges that Defendant aided and abetted in the persecution of the LGBTI community in Uganda and that this persecution amounted to a crime against humanity. Supreme Court has held that a federal court can only
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The
recognize a claim under the ATS if the claim seeks to enforce an underlying norm of international law that is as clearly defined and accepted as the international law norms familiar to Congress in 1789 when the ATS was enacted. Sosa, 542 U.S. at 732. The analysis, therefore, must
proceed in two steps: first, was there a violation of an international norm -- in this case, as Plaintiff alleges, a recognized crime against humanity committed by Defendant? Second, if so, is the crime against humanity within the limited group of claims for which the ATS furnishes jurisdiction? The answer to the first question is straightforward and clear. Widespread, systematic persecution of LGBTI people
constitutes a crime against humanity that unquestionably violates international norms. A review of applicable
authorities makes the answer to the second question easily discernible as well. 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. A variety of sources can be used to determine the
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content of international law: treaties, judicial decisions of the courts of justice of appropriate jurisdictions, and controlling legislative or executive decisions. The Paquete
Habana, 175 U.S. 677, 700 (1900); see also Sosa, 542 U.S. at 734. In the absence of these controlling authorities, the
Supreme Court has counseled that the existence and content of international law may be derived by reference to: the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is. Sosa, 542 U.S. at 734 (citing The Paquete Habana, 175 U.S. at 700). In analyzing the existence of the international legal norm proffered by Plaintiff in this case, it is helpful to begin by differentiating among three terms: discrimination, persecution, and crimes against humanity. These three
concepts measure the increasing severity of the discriminatory activity against a targeted group. The Human Rights Committee of the United Nations has
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defined discrimination as: [A]ny distinction, exclusion, restriction, or preference based on certain motives . . . that seeks to annul or diminish the acknowledgment, enjoyment, or exercise, in conditions of equality, of the human rights and fundamental freedoms to which every person is entitled. UN Human Rights Comm., CCPR Gen. Comment 18, NonDiscrimination (1989), available at http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/3888b0541f8501 c9c12563ed004b8d0e?Opendocument. Persecution is a harsher subset of discrimination, comprising intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity. Rome Statute
on the International Criminal Court art. 7(2)(g), July 1, 2002, 2187 U.N.T.S. 38544. Persecution can be a crime
against humanity, but it may not always rise to that level. For persecution to amount to a crime against humanity, it must be part of a widespread or systematic attack directed against any civilian population. art. 7(1)(h). It is doubtful whether the ATS would furnish jurisdiction for a claim of persecution alone; this claim
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Rome Statute
under the common law would appear to lack the definite content and acceptance among civilized nations within the historical paradigms familiar when 1350 was enacted. See Sosa, 542 U.S. at 732 (citation omitted). On the other
hand, persecution that rises to the level of a crime against humanity has repeatedly been held to be actionable under the ATS. See Presbyterian Church of Sudan v. Talisman Energy,
Inc., 582 F.3d 244, 256 (2d Cir. 2009); Cabello v. Fernandez-Larios, 402 F.3d 1148, 1154 (11th Cir. 2005) (noting that crimes against humanity have been recognized as actionable under United States and international law since long before the 1970's); Flores v. Southern Peru Copper Corp., 414 F.3d 233, 244 n.18 (2d Cir. 2003) (noting that customary international law rules proscribing crimes against humanity . . . have been enforceable against individuals since World War II); Kadi v. Karadi, 70 F.3d 232, 236 (2d Cir. 1995); In re Chiquita Brands Intl, Inc., 792 F. Supp. 2d 1301, 1344 (S.D. Fla. 2011); Doe v. Saravia, 348 F. Supp. 2d 1112, 1156-57 (E.D. Cal. 2004) (holding that persecution that constitutes a crime against humanity is actionable under the ATS); Mehinovic v. Vuckovic, 198 F.
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Supp. 2d 1322, 1352 (N.D. Ga. 2002) (Crimes against humanity have been recognized as a violation of customary international law since the Nuremberg trials and therefore are actionable under the ATCA.), abrogated in part Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1247 (11th Cir. 2005). For persecution to reach the level of a crime against humanity, it typically must involve more than the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity. Rome Statute art. 7(2)(g). It
must be demonstrated, in addition, that the persecution has been part of a widespread or systematic attack to qualify as a crime against humanity. Saravia, 348 F. Supp. 2d at
1156; see also Rome Statute art. 7(1)(h). To properly plead persecution as a crime against humanity, Plaintiff must allege both the proper actus reus -- denial of fundamental rights -- and mens rea -- the intentional targeting of an identifiable group. The
allegations set forth in the Amended Complaint offer evidence of both aspects of criminal intent.
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It has been
noted that the crime of persecution encompasses a variety of acts, including, inter alia, those of a physical, economic or judicial nature, that violate an individuals right to the equal enjoyment of his basic rights. Prosecutor v. Tadi, Trial Judgment, IT-94-1-T 710 (May 7, 1997). In determining what constitutes a basic right,
international courts have looked to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Id. at 703; Prosecutor v.
Kupreki, Judgment, IT-95-16-T, 621 (Jan. 14, 2000). Persecution on the level of a crime against humanity must be based on the identity of a specific targeted group. 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. 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. See, e.g., Nuremberg Charter art.
6(c) (encompassing persecutions on political, racial or religious grounds); Rome Statute art. 7(1)(h) (defining an
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actionable crime against humanity as persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law); Updated Statute of the Intl Criminal Tribunal for the Former Yugoslavia art. 5(h), Sept. 2009 (providing jurisdiction over persecutions on political, racial and religious grounds); Statute of the Intl Tribunal for Rwanda art. 3(h), Jan. 1, 2007 (providing jurisdiction over persecutions on political, racial and religious grounds). It is noteworthy, however, that virtually all of these instruments provide savings clauses. See Rome Statute art.
7(1)(h) (including other grounds that are universally recognized as impermissible under international law in the definition). Even when they do not, international courts
have interpreted the identity of the group requirement broadly to encompass persecution of a discrete identity. See Prosecutor v. Naletili and Martinovi, Judgment, IT-9834-T, 636 (Mar. 31, 2003) (instructing that the jurisdictional limit to prosecute persecution based on race,
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politics, and religion must be interpreted broadly); Prosecutor v. Nahimana, Trial Judgment, ICTR-99-52-T 1071 (Dec. 3, 2003). Significantly, the boundaries of persecution are almost always defined by those carrying out the persecution against a particular group. In other words, the perpetrator
defines the victim group while the targeted victims have no influence of the definition of their status. Martinovi Judgment 636. Naletili and
This fact strongly argues in
favor of a generous interpretation of what groups enjoy protection under international norms. Customary international law does not in general limit the type of group that may be targeted for persecution. the International Criminal Tribunal for the Former Yugoslavia (ICTY) has observed, There are no definitive grounds in customary international law on which persecution must be based and a variety of different grounds have been listed in international instruments. 711. In light of the savings clauses in the international instruments and the expansive boundaries of customary law,
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As
Tadi Trial Judgment
the argument that international norms do not bar systematic persecution of LGBTI people, because -- in contrast to racial, ethnic or religious minorities -- they are not explicitly mentioned is unpersuasive. It is enough that
Plaintiff alleges that the denial of fundamental rights it suffered was based on an unjustifiable discriminatory criterion. Id. at 697.
One argument offered by Defendant in this regard may be dismissed out of hand. Defendant appears to contend that
because LGBTI people suffer discrimination in many countries, acts of persecution committed by him against this community cannot be viewed as violating international norms. (Dkt. No. 33, Def.s Mem. 31-34.) specious. This argument is utterly
First, Defendant concedes that the highest court
in Uganda has itself recognized the entitlement of gay and lesbian people to fair and equal treatment under the law, including protection of their basic rights to free expression, life, liberty, and property. More importantly,
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
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groups, defined by religion, race, or some other accepted characteristic. The history and current existence of discrimination against LGBTI people is precisely what qualifies them as a distinct targeted group eligible for protection under international law. 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. As noted, the critical feature that elevates a campaign of persecution to a crime against humanity is its expression as a widespread, systematic attack on the targeted community. In determining whether actions are part of a
systematic attack, the former President of the International Criminal Tribunal for the former Yugoslavia, Cassesse set out the following test: [O]ne ought to look at these atrocities or acts in their context and verify whether they may be regarded as part of an overall policy or a consistent pattern of inhumanity, or whether they instead constitute isolated or sporadic acts of cruelty or wickedness. Saravia, 348 F. Supp. 2d at 1156. To be widespread and Antonio
systematic, acts do not have to involve military forces or

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armed hostilities, or any violent force at all.
Rodney
Dixon, Crimes Against Humanity: Analysis and Interpretation of Elements, in Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article 124-25 (Otto Triffterer ed. 1999). The
International Criminal Tribunal for Rwanda (ICTR) has observed: An attack may also be non violent in nature, like imposing a system of apartheid . . . or exerting pressure on the population to act in a particular manner, may come under the purview of attack, if orchestrated on a massive scale or in a systematic manner. Prosecutor v. Akayesu, Opinion and Judgment, Case No. ICTR96-4-T, 581 (Sept. 2, 1998). Plaintiff has stated a claim for persecution that amounts to a crime against humanity, based on a systematic and widespread campaign of persecution against LGBTI people in Uganda. The allegations feature Defendants 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
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property. Plaintiff rests its claim of individual liability in large part on Defendants accessory role in aiding and abetting the persecutory campaign amounting to a crime against humanity. (Dkt. No. 27, Am. Compl. 237-38; Dkt. Aiding and abetting is a well-
No. 38, Pl.s Mem. 44.)
established basis for liability in international customary law. Numerous authorities confirm that a cause of action
exists under international law for aiding and abetting a crime against humanity. Indeed, aiding and abetting
liability was accepted as part of the customary international law that was applied by the war tribunals after World War II. Khulumani v. Barclay Natl Bank Ltd.,
504 F.3d 254, 270-75 (2d Cir. 2007) (Katzmann, J. concurring), adopted in Presbyterian Church of Sudan, 582 F.3d at 258. Aiding and abetting has been subsequently recognized as an established basis for liability in international law instruments including the Rome Statute and the statutes creating the ICTY and the ICTR. Id.
Beyond current customary international law, the United

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States Congress itself in 1789 appeared to recognize a cause of action for aiding and abetting violations of international law. 29 (D.C. Cir. 2011). Doe v. Exxon Mobil Corp., 654 F.3d 11, The year after the passage of the
Judiciary Act, Congress passed a piracy law providing for aiding and abetting liability. Crimes Act of 1790, ch. 9,
10, 1 Stat. 112, 114 (1790) (deeming an accessary [sic] to ... piracies anyone who shall knowingly and willingly aid and assist, procure, command, counsel, advise any person to commit piracy). An early federal circuit court case
acknowledged that U.S. citizens could be liable for aiding and abetting a violation of U.S. treaties or the law of nations. Henfields Case, 11 F. Cas. 1099 (C.C. Pa. 1793)
(No. 6360) (noting that they who commit, aid, or abet hostilities against these powers, or either of them, offend against the laws of the United States, and ought to be punished; and consequently, that it is your duty, gentlemen, to inquire into and present all such of these offences, as you shall find to have been committed within this district); see also Talbot v. Jensen, 3 U.S. 133, 167-68 (1795).
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Aiding and abetting liability under the ATS has been accepted by every circuit court that has considered the issue. Exxon Mobil Corp., 654 F.3d at 29-30; Presbyterian
Church of Sudan, 582 F.3d at 259; Khulumani, 504 F.3d at 260 (per curiam); Cabello, 402 F.3d at 1157-58. To obtain a verdict based on a theory of aiding and abetting, a plaintiff must prove that a defendant provided practical assistance to the principal which has a substantial effect on the perpetration of the crime. Exxon
Mobil Corp., 654 F.3d at 39; Presbyterian Church of Sudan, 582 F.3d at 259. The circuits are currently divided as to
whether a plaintiff must show that a defendant acted only with knowledge of the criminal enterprise or that his explicit purpose was to facilitate the criminal activity. Compare Exxon Mobil Corp., 654 F.3d at 39 (requiring that plaintiff commit the act with knowledge of the criminal purpose); Presbyterian Church of Sudan, 582 F.3d at 259 (requiring that plaintiff show that defendant committed the act with the purpose of facilitating the commission of the crime); Cabello, 402 F.3d at 1157-58 (adopting the federal common law standard of knowledge).
-33-
Because Plaintiff has
pleaded the more stringent purpose standard, it is unnecessary for the court to resolve the knowledge/purpose controversy. The Amended Complaint sets forth detailed factual allegations supporting Count Ones claim that Defendant bears individual liability for aiding and abetting the commission of a crime against humanity. Essentially,
Defendants role is alleged to be analogous to that of an upper-level manager or leader of a criminal enterprise. participated in formulating the enterprises policies and strategies. He advised other participants on what actions He
might be most effective in achieving the enterprises goals, such as criminalizing any expressions of support for the LGBTI community and intimidating its members through threats and violence. He generated and distributed propaganda that
falsely vilified the targeted community to inflame public hatred against it. In particular, Plaintiff has set out plausibly that Defendant worked with associates within Uganda to coordinate, implement, and legitimate strategies to dehumanize, demonize, silence, and further criminalize the
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[Ugandan] LGBTI community.
(Dkt. No. 27, Am. Compl. 27.)
In both 2002 and 2009, as part of this alleged campaign, Defendant met with Ugandan governmental leaders. 27, Am. Compl. 36, 52, 77, 78.) (Dkt. No.
Defendants intentional
activities, according to the Amended Complaint, succeeded in intimidating, oppressing, and victimizing the LGBTI community. Indeed, as noted, according to the Amended
Complaint Defendant acknowledged that his efforts made him instrumental in detonating a nuclear bomb against the gay agenda in Uganda. (Dkt. No. 27, Am. Compl. 56 & 88.)
Of course, all these allegations will need to be proved at trial to entitle Plaintiff to a verdict, and they may not be. But, as this lengthy discussion demonstrates, they are
sufficient, as allegations, to state a claim for the commission of a crime against humanity against Defendant. Similarly, the overwhelming weight of authority establishes that this crime against humanity is one of the relatively few violations of international norms for which the ATS furnishes jurisdiction.5
5
It is true, as Sosa makes
Defendant argues that he cannot be liable for persecution because he is not a state actor. However, there is no requirement that aiding and abetting be done by a state
-35-
clear, that not all violations of international norms, even if properly alleged, can be pursued under the ATS. The
further question is whether, as Justice Souter put it, Plaintiffs claim rests on a norm of international character accepted by the civilized world and defined with specificity comparable to the features of the 18th-century paradigms [the Court has] recognized. (emphasis added). Put more concretely, is aiding and abetting a crime against humanity tantamount to piracy, or one of the other narrowly defined crimes for which the ATS provided jurisdiction in 1789? Again, the weight of authority confirms that it is. As 542 U.S. at 725
noted, both crimes against humanity and aiding and abetting liability are well-established and accepted in customary international law. Moreover, an ATS cause of action for
this type of international law violation has been widely recognized in the lower courts. As Sosa noted, the door is
still ajar, to federal common law claims for some violations of customary law, if only because [i]t would actor.
-36-
take some explaining to say now that federal courts must avert their gaze entirely from any international norm intended to protect individuals. Id. at 728, 732.
In sum, then, for the reasons stated Plaintiff has adequately pled both that a crime against humanity has been committed by Defendant and that this crime rests among the relatively small group of violations of international norms for which the ATS provides jurisdiction.6 B. Claims Related to Extraterritorial Conduct Under the Alien Tort Statute. Defendant argues that this court cannot recognize Plaintiffs ATS claims because Plaintiff cannot overcome the presumption that causes of action recognized under the ATS do not extend to extraterritorial conduct. Subsequent to
oral argument, the Supreme Court clarified an aspect of this issue in Kiobel v. Royal Dutch Petroleum, 133 S. Ct. 1659 It is important to note that, in addition to Count I, Counts II and III of the Amended Complaint have, apparently in the alternative, charged Defendant as a participant in a joint criminal enterprise and as a co-conspirator respectively. Because Plaintiff has clearly set forth its claim in Count I against Defendant based on his individual responsibility, it is unnecessary, at least at this stage, to address the sufficiency of the legal and factual support for these two counts.
-376
(2013).
The Courts decision addressed whether a federal
court could recognize a cause of action for claims by Nigerian citizens living in the United States against Dutch and British corporations. Neither corporation had more than
a negligible presence in the United States, and all the tortious conduct alleged to have been committed by them occurred outside the United States, in Nigeria. The Supreme
Court held that in this context, the plaintiffs did not have a cause of action, based on the presumption against extraterritorial application. 133 S. Ct. at 1669.
Two facts alleged in this case distinguish it from Kiobel. First, unlike the British and Dutch corporations,
Defendant is an American citizen residing within the venue of this court in Springfield, Massachusetts. Second, read
fairly, the Amended 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 Defendants conduct was felt in Uganda cannot deprive Plaintiff of a claim. Defendants alleged actions in planning and managing a
-38-
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 Supreme Court has made
clear that the presumption against the extraterritorial application of a statute comes into play only where a defendants conduct lacks sufficient connection to the United States. See Morrison v. Natl Australia Bank Ltd.,
130 S. Ct. 2869, 2884 (2010); Pasquantino v. United States, 544 U.S. 349 (2005). Kiobel elaborated on this theme. As Chief Justice
Roberts stated in his opinion, the issue in that case was whether a claim may reach conduct occurring in the territory of a foreign sovereign. 1664. Kiobel, 133 S. Ct. at
In the final paragraph of his decision, he emphasized
that the Courts holding applied to a factual scenario where all the relevant conduct took place outside the United States. Id. at 1669. Where conduct occurred solely
abroad, mere corporate presence, he concluded, did not touch and concern the United States with sufficient force to displace the presumption against extraterritorial application. Id.
-39-
The separate concurrence of Justice Kennedy made the limited reach of Kiobel manifest. Other cases, he noted,
may arise with allegations of serious violations of international law principles protecting persons . . . ; and in those disputes the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation. 1669. Even the narrowest construction of the Kiobel holding, set forth in the separate concurrence of Justice Alito on behalf of himself and Justice Thomas, made clear that an ATS cause of action will lie where the domestic conduct is sufficient to violate an international law norm that satisfies Sosas requirements of definiteness and acceptance among civilized nations. (emphasis added). This is not a case where a foreign national is being hailed into an unfamiliar court to defend himself. Defendant is an American citizen located in the same city as this court. The presumption against extraterritoriality is Kiobel, 133 S. Ct. at 1670 133 S. Ct. at
based, in large part, on foreign policy concerns that tend

-40-
to arise when domestic statutes are applied to foreign nationals engaging in conduct in foreign countries. Kiobel,
133 S. Ct. at 1664-65; Morrison, 130 S. Ct. at 2885-86 (noting the obvious probability of incompatibility with the applicable laws of other countries and concluding that the defendants connection to the United States was insufficient); EEOC v. Arabian American Oil Co., 499 U.S. 244, 248 (1991) (noting that presumption serves to protect against unintended clashes between our laws and those of other nations which could result).7 An exercise of jurisdiction under the ATS over claims against an American citizen who has allegedly violated the law of nations in large part through actions committed within this country fits comfortably within the limits described in Kiobel. Indeed, the failure of the United States to make its courts available for claims against its citizens for actions taken within this country that injure persons abroad would In extreme cases, piracy for example, Kiobel noted that the ATS would provide jurisdiction over claims against foreign nationals for tortious conduct committed wholly in a foreign country, on the ground that it carried less direct foreign policy consequences. Id. at 1667.
-417
itself create the potential for just the sort of foreign policy complications that the limitations on federal common law claims recognized under the ATS are aimed at avoiding. Under the law of nations, states are obliged to make civil courts of justice accessible for claims of foreign subjects against individuals within the states territory. If the
courts decision constitutes a denial of justice, or if it appears to condone the original wrongful act, under the law of nations the United States would become responsible for the failure of its courts and be answerable not to the injured alien but to his home state. Tel Oren v. Libyan
Arab Republic, 726 F.2d 774, 783 (D.C. Cir. 1984) (Edwards, J. concurring), cert. denied, 470 U.S. 1003 (1985). One such episode, occurring shortly after the passage of the ATS, underlines the role of United States courts in precisely this situation. In 1794, several U.S. citizens
joined a French privateer fleet to aid the French in the war on Great Britain despite the official American policy of neutrality. These Americans formed part of a force that
attacked and plundered the British colony of Sierra Leone. When the British Ambassador protested and demanded that the
-42-
Americans be punished, then Attorney General William Bradford responded that it was unlikely that the Americans could be criminally prosecuted for actions abroad or on the high seas. But, he noted, [t]here can be no doubt that the
company or individuals who have been injured by these acts of hostility have a remedy by a civil suit in the courts of the United States; jurisdiction being expressly given to these courts in all cases where an alien sues for a tort only, in violation of the laws of nations, or a treaty of the United States. Kiobel, 133 S. Ct. at 1668 (quoting
Breach of Neutrality, 1 Op. Atty. Gen. 57 (1795)). It is true, as Defendant points out, that the Amended Complaint, which was filed prior to Kiobel, highlights actions taken by Defendant in Uganda. Defendants
contention that all his alleged misconduct took place in Uganda, however, offers a distorted picture of the pleading. As noted, Plaintiff alleges that Defendants tortious behavior unfolded over at least a decade, during which time he was actually present in Uganda only a few times. The
actual claim of individual responsibility against Defendant is rooted in a contention that Defendant aided and abetted
-43-
the tortious conduct.
The relevant question therefore is
whether Plaintiff has alleged that substantial practical assistance was afforded to the commission of the crime against humanity from the United States. The Amended Complaint adequately sets out actionable conduct undertaken by Defendant in the United States to provide assistance in the campaign of persecution in Uganda. To review these allegations, and at the risk of repetition, the Amended Complaint alleges that Defendant resides and operates out of Springfield, Massachusetts. Am. Compl. 8.) (Dkt. No. 27,
It describes how, after Defendant traveled
to Uganda in 2002, he continued to assist, manage, and advise associates in Uganda on methods to deprive the Ugandan LGBTI community of its basic rights. 55-56.) (Id. at 47,
Defendants Ugandan co-conspirators then contacted
him in the United States in 2009 to craft tactics to counter the Ugandan High Court ruling confirming that LGBTI persons enjoyed basic protections of the law. (Id. at 36.) After
going to Uganda in 2009, Defendant continued to communicate from the United States through Martin Ssempa to members of the Ugandan Parliament about the legislation proposing the -44-
death penalty for homosexuality.
From his home in the
United States, he reviewed a draft of the legislation and provided advice on its content. (Id. at 140, 161.)
Given that Defendant is a United States citizen living in this country and that the claims against him touch and concern the territory of the United States . . . with sufficient force to displace the presumption against extraterritoriality, a cause of action is appropriate under the ATS. C. Kiobel, 133 S. Ct. at 1669.8
Standing.
This conclusion is in line with most of the cases that have considered the presumption against extraterritoriality post-Kiobel. See Muntslag v. Dieteren, S.A., 2013 WL 2150686, at *2 (S.D.N.Y. May 17, 2013) (holding that jurisdiction did not exist over foreign defendants when allegedly tortious acts all occurred abroad); Mohammadi v. Islamic Republic of Iran, -- F. Supp. 2d ----, 2013 WL 2370594, at *15 (D.D.C. May 31, 2013) (holding that there was an insufficient nexus to the territory or interests of the United States when the defendants were leaders of Iran and activities occurred in the sovereign territory of Iran); Mwani v. bin Laden, -- F. Supp. 2d ----, 2013 WL 2325166, at *4 (D.D.C. May 29, 2013) (holding that presumption against extraterritoriality displaced when a foreign defendant bombed an American embassy abroad and overt acts in furtherance of the conspiracy took place in the United States). In one case, a district court has dismissed a claim against an American corporation based on alleged torture and war crimes occurring in Iraq. al Shimari v. CACI Intl, Inc., -- F. Supp. 2d ----, 2013 WL 3228720, at *7-10 (E.D. Va. June 25, 2013). Arguably, a different rationale may apply to a natural U.S. citizen than an American corporation. If not, this court finds the reasoning in al Shimari unpersuasive. -45-
Defendant argues that Plaintiff, as an umbrella organization, lacks standing to bring this suit either in its own right or as a representative of its members. argument will not withstand scrutiny. Plaintiff has The
standing to seek monetary and equitable relief for Defendants actions that have caused direct damage to it. Moreover, it also has associational standing to bring claims on behalf of its members and the LGBTI community for injunctive relief to prevent Plaintiff from continued actions to strip away and/or deprive Plaintiff and LGBTI community in Uganda of their fundamental rights. 27, Am. Compl. 13.) 1. Organizational Standing. (Dkt. No.
It is well-established that an organization can sue to obtain compensation for injuries it sustains. Warth v.
Seldin, 422 U.S. 490, 511 (1975); Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 n.19 (1982); Mass. Delivery Assn v. Coakley, 671 F.3d 33, 44-45 (1st Cir. 2012). Article III
standing exists where three criteria are satisfied: (1) an injury in fact, which is (2) fairly traceable to the defendants misconduct, and which can be (3) redressed -46-
through a favorable decision of the court.
Lujan v.
Defenders of Wildlife, 560 U.S. 555, 560-61 (1992). Defendant does not argue that Plaintiff has failed to meet the first prong -- injury in fact. The Amended
Complaint sets forth two distinct harms to Plaintiffs organization. First, Plaintiffs operations, conferences,
and staff have allegedly been targeted as part of the persecutory campaign. Plaintiff alleges that, as a result,
it has had to retain the services of security personnel, take additional security measures for its premises, and relocate its offices and operations. cost money. All this has obviously
Second, Plaintiff has had to expend
considerable resources and efforts to counteract Defendants campaign of repression; the need for these efforts has impaired Plaintiffs ability to carry out its own organizational objectives. Defendant correctly concedes
that the allegations of injury in fact are sufficient. Defendant does challenge the sufficiency of the evidence to satisfy the second element, the connections between the injury and Defendants conduct. For the court
to find that Plaintiff has standing, there must be a causal -47-
connection between the injury and conduct complained of -the injury has to be fairly trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court. Lujan, 504 U.S. at 560 (quoting Simon v. Eastern
Ky. Welfare Rights Org., 526 U.S. 26, 41-42 (1976)). In addressing this factor, it is important to bear in mind that Defendants actions need not be the very last step in the chain of causation for the injury. It suffices
if the plaintiff can show injury produced by determinative or coercive effect upon the action of someone else. Weavers Cove Energy, LLC v. R.I. Coastal Res. Mgmt. Council, 589 F.3d 458, 467 (1st Cir. 2009) (internal quotation and citation omitted).9 At this stage, Plaintiff has adequately pled that Defendant was one of the principal strategists and actors behind this decade-long persecutory campaign. (Dkt. No.
Defendant contends that the fairly traceable element is only met if Plaintiff can show that his speech was directed at producing or inciting imminent lawless action and is likely to produce or incite such action. However, this is a substantive test for whether speech is protected by the First Amendment and not a test for standing. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 928 (1982). -48-
27, Am. Compl. 25.)
While some of the actions that
Plaintiff describes in the Amended Complaint may not be directly traceable to Defendant, Defendant may nevertheless be held liable, as the previous discussion notes, for his conduct as an aider and abettor. According to the Amended
Complaint, Defendant himself has acknowledged that he has been instrumental in launching the anti-LGBTI movement in Uganda and developing strategies for its ongoing operation -- the nuclear bomb previously noted. Given all this, the
allegations of the complaint sufficiently support a finding that Plaintiffs injury is directly traceable to Defendants conduct. Finally, Plaintiff has met its burden to plead plausibly that it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan, 504 U.S. at 561. To a
substantial extent the injuries to Plaintiff as an organization are quantifiable and may be remedied by an award of monetary damages. 2. Associational Standing.
While Plaintiff may seek monetary damages for the -49-
injuries it has suffered to itself as an organization, Defendant argues that Plaintiff cannot seek monetary damages for its members, based on its associational standing. Defendant contends that proof of these claims, and particularly the determination of monetary damages, will require participation by individuals whose interests the organization does not have standing to assert. The simple
answer to this is that Plaintiff seeks monetary damages only for injury to itself as an organization, not for its individual members, as to whom only equitable relief is requested. Associational standing allows an organization to bring suit solely as the representative of its members [e]ven in the absence of injury to itself. 511. Warth, 422 U.S. at
To assert associational standing, a plaintiff must
show: (1) its members would otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane to the organization's purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt v.
Wash. State Apple Adver. Commn, 432 U.S. 333, 343 (1977). -50-
Defendant does not directly argue that Plaintiff fails to meet the first two requirements. Plaintiff is an
umbrella organization that was founded in 2004 by a coalition of Ugandan organizations advocating on behalf of lesbian, gay, bisexual, transgender, and intersex (LGBTI) communities, to unify and support sexual minority groups in Uganda. (Dkt. No. 27, Am. Compl. 18.) Plaintiff asserts
that individual members of its constituent organizations have suffered persecution and associated harms as a result of Defendants actions. (Dkt. No. 27, Am. Compl. 21.)
Plaintiff also asserts that the interests it seeks to protect in this case -- preventing persecution of the LGBTI community in Uganda -- are germane to its agenda to advocate, unify, and support this community. While not contesting either of these points directly, Defendant does argue that Sexual Minorities Uganda has not adequately alleged associational authority. To support the
need to show associational authority, Defendant cites an ATS case where a defendant, Unocal, Inc., argued that an organization only has associational standing when it has a clear mandate from its membership to take the position -51-
asserted in the litigation.
Natl Coal. Govt Union Burma
v. Unocal, Inc., 176 F.R.D. 329, 344 n.16 (C.D. Cal. 1997). Here, Defendant argues, no such clear mandate has been alleged. Defendant has misread the Unocal decision. In that
case, the district court denied the Federated Trade Unions of Burma standing based on the fact that all of the tort claims were based on harm to individual plaintiffs, and none to the organization itself. The courts holding on the
standing issue was not anchored on whether the organization had a clear mandate from its membership. Authority from the
District of Massachusetts makes clear that an organization represents a defined and discrete constituency even if that constituency is different from the formal members of the organization. (D. Mass. 1983). It is true that authorities generally reject associational standing where an organization seeks monetary relief on behalf of its members, on the ground that these claims require individualized proof of claims. See Bano v. NAACP v. Harris, 567 F. Supp. 637, 640
Union Carbide Corp., 361 F.3d 696, 714 (2d Cir. 2004). -52-
However, Plaintiff here seeks to assert associational standing solely to obtain injunctive relief on behalf of its members. Because Plaintiff is not requesting monetary
damages for its members, there is normally no need . . . for the members to participate as parties. Pharm. Care
Mgmt. Assn v. Rowe, 429 F.3d 294, 307 (1st Cir. 2005). Admittedly, all requests for injunctive relief do not automatically grant a plaintiff associational standing. Courts have rejected claims for injunctive relief that seek, in effect, remedies applicable only to specific individuals. Bano, 361 F.3d at 716 (rejecting associational
standing where the group sought an injunction ordering remediation of individual private properties). Here, however, Plaintiff is not requesting injunctive relief that is particular to any individual in Uganda. Instead, the injunctive relief in this case only requests that the Defendant cease certain general activities. equitable relief will not require participation of Plaintiffs members. [The] relief, if granted, would inure This
to the benefit of all the affected [members] equally, regardless of their individual circumstances. -53Coll.
Dental Surgeons P.R. v. Conn. Gen. Life Ins. Co., 585 F.3d 33, 41 (1st Cir. 2009). Defendant points to two district court opinions purportedly supporting the proposition that associational representation is not suitable for civil tort claims because those claims can only be adjudicated by considering the testimony and other evidence of the people allegedly [injured]. Natl Coal. Govt Union Burma, 176 F.R.D. at
344; see also Presbyterian Church of Sudan v. Talisman Energy, Inc., 2005 WL 1060353 (S.D.N.Y. May 6, 2005). decisions are, of course, not binding on this court. These More
importantly, the language of these decisions describing the limits of associational standing for tort claims appears to be overbroad. The fact that a claim requires individual proof does not necessarily defeat associational standing. See Playboy
Entmt v. Public Service Commn Puerto Rico, 906 F.2d 25, 35 (1st Cir. 1990) (holding that the need for individual proof does not necessitate that members be parties); Coll. Dental Surgeons P.R., 585 F.3d at 41 (noting that even though some fraudulent practice claims may require evidence from -54-
individual members those claims are not a fact-intensiveindividual inquiry). Even though [a claim] is intensely
fact specific and [plaintiff] will be required to introduce proof of specific [member] practices and effects [] on specific [members], we see no reason that [plaintiffs members] would be required to participate as parties. Pharm. Care Mgmt. Assn, 429 F.3d at 306. Because the claim
here -- persecution -- is a group-based claim, it is wellsuited to be brought by a representative association like Plaintiff, even though some of the evidence will come from individual testimony. Plaintiff has associational standing
to bring its claims for injunctive relief. Plaintiff also meets the Article III requirements for standing as a representative of its members. The analysis
for injury and causation in this context is virtually the same as the analysis applicable to determine an organizations entitlement to bring a suit in its own right. Defendant contends, however, that even if Plaintiff has adequately pled injury and causation, the allegations of the Amended Complaint fail to satisfy the third requirement -redressability -- when the only relief it seeks for its -55-
members is an injunction.
No injunctive or declaratory
relief that this court could issue, Defendant says, could possibly provide Plaintiffs members any remedy, since the initiatives against the LGBTI community in Uganda have an independent momentum beyond any control by Defendant. This argument has force but, at least at this stage, is unpersuasive. It is well-established that, while Plaintiff
must show that a favorable resolution would likely redress the injury, [r]edressability is a matter of degree and Plaintiff need not show that the potential remedies within the courts power would completely alleviate its members injuries. 2012). Certainly there is no doubt that Defendant is only one of several actors allegedly persecuting the LGBTI community in Uganda. As Defendant notes, enjoining Defendant does not Katz v. Pershing, LLC, 672 F.3d 64, 72 (1st Cir.
guarantee that his co-conspirators will cease their repression against Plaintiff and its members. It is quite
true that this court does not have either the jurisdiction or power to stop all possible harm against Plaintiff in Uganda. Nevertheless, Plaintiff has sufficiently alleged -56-
that Defendant played a crucial role in developing strategies to deny basic rights to Plaintiffs members over the last decade. With the failure (so far) of the Anti-
Homosexuality Bill, Plaintiff has a justified fear that Defendant will be called upon to help devise new strategies to deny the rights of Plaintiffs members. Plaintiff has
shown that a favorable ruling could potentially lessen its injury; it need not definitively demonstrate that a victory would completely remedy the harm. Antilles Cement Corp. v.
Fortuo, 670 F.3d 310, 318 (1st Cir. 2012). For all the foregoing reasons, the Amended Complaint contains sufficient allegations to support both organizational and associational standing. D. First Amendment Concerns. Defendant has vigorously argued that all his actions are protected by the First Amendment to the United States Constitution. Discovery may, or may not, reveal that the
argument is correct, and this issue will almost certainly be front and center at the summary judgment stage of this case. What is quite clear now, however, is that the Amended Complaint adequately alleges that Defendants actions have -57-
fallen well outside the protections of the First Amendment. Defendant is correct that the First Amendment places limits on the imposition of tort liability linked to offensive speech, and that the protection of free expression, including the protection of thought we hate, is a centerpiece of our democracy.10 Snyder v. Phelps, 131
S. Ct. 1207, 1215 (2011); Hustler Magazine v. Falwell, 485 U.S. 46, 50-51 (1988). For example, intentional infliction of emotional distress claims -- which ask a jury to consider whether speech was outrageous -- are too subjective to meet the requirements of the First Amendment when applied to public figures or topics of public concern. 1219; Hustler, 485 U.S. at 55. Snyder, 131 S. Ct. at
[H]urtful speech is
protected when it address[es] matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. at 1220. An ardent exposition of all the reasons why protection of thought we hate is so central to the genius of our Constitution is contained in the late Anthony Lewiss superb book, Freedom for the Thought We Hate: A Biography of the First Amendment (2010).
10
Snyder, 131 S. Ct.
-58-
In the criminal context, even if speech advocates for the use of force or for violations of law, it receives First Amendment protection except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Ohio, 395 U.S. 444, 447-48 (1969). On the other hand, when noxious words become part of a criminal enterprise, the First Amendment provides limited protection. As Justice Black, an unsurpassed supporter of Brandenburg v.
the First Amendment, wrote: It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute. We reject the contention now. . . . . . . [I]t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written or printed. Such an expansive interpretation of the constitutional guaranties of speech and press would make it practically impossible ever to enforce laws against agreements in restraint of trade as well as many other agreements and conspiracies deemed injurious to society. Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498, 502 (1949) (internal citations omitted). -59-
It is well-established that speech that constitutes criminal aiding and abetting is not protected by the First Amendment. See, e.g., United States v. Bell, 414 F.3d 474,
483-84 (3d Cir. 2005); Natl Org. for Women v. Operation Rescue, 37 F.3d 646, 656 (D.C. Cir. 1994); United States v. Freeman, 761 F.2d 549, 552 (9th Cir. 1985) (Kennedy, J.) (noting that [c]ounseling is but a variant of the crime of solicitation, and the First Amendment is quite irrelevant if the intent of the actor and the objective meaning of the words used are so close in time and purpose to a substantive evil as to become part of the ultimate crime itself); United States v. Kelley, 769 F.2d 215, 217 (4th Cir. 1985); United States v. Barnett, 667 F.2d 835, 842-43 (9th Cir. 1982) (The first amendment does not provide a defense to a criminal charge simply because the actor uses words to carry out his illegal purpose. Crimes including that of aiding
and abetting, frequently involve the use of speech as part of the criminal transaction.); cf. Giboney, 336 U.S. at 498 (holding that speech integral to criminal conduct is not protected). It is equally well supported that the same
logic extends to civil actions for aiding and abetting. -60-
Rice v. Palladin Enterprises, Inc., 128 F.3d 233, 242-43 (4th Cir. 1997). In determining whether speech that is related to political advocacy receives First Amendment protection, the Supreme Court has distinguished between theoretical advocacy, Scales v. United States, 367 U.S. 203, 235 (1961), meaning advocacy of principles divorced from action, Yates v. United States, 354 U.S. 298, 320 (1957), and speech that is meant to induce or precipitate illegal activity. See also United States v. Williams, 553 U.S. 285, As the court in Brandenburg recognized,
298-99 (2008).
[T]he mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action. 395 U.S. at 448 (quoting Noto Merely
v. United States, 367 U.S. 290, 297-98 (1961)).
advocating for reform is quite different constitutionally from preparing for criminal activity. Based on these authorities it is clear that the Amended Complaint sets forth sufficient allegations to support a claim for activity outside the protection of the First -61-
Amendment.
Plaintiff contends that Defendants 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. Apart from his right to free expression, Defendant also contends that his actions are protected by the Petition Clause of the First Amendment. Generally, Defendant points
out, there is no remedy against private persons who urge the enactment of laws, regardless of their motives. Tomaiolo v. Mallinoff, 281 F.3d 1, 11 (1st Cir. 2002). It
is well-established, however, that the Petition Clause does not immunize a defendants interactions with foreign governments. Australia/Eastern U.S.A. v. United States, 557
F. Supp. 807, 812 (D.D.C. 1982); Occidental Petroleum Corp. v. Buttes Gas & Oil Co., 331 F. Supp. 92 (C.D. Cal. 1971),
-62-
affd 461 F.2d 1261 (9th Cir. 1972).11
In other words, the
Petition Clause protects the right of Americans to seek legislation by the United States government, not by governments of foreign countries. Even if the Petition Clause applied, the court could not dismiss the action as a matter of law, given that the petition clause cannot protect activities taken for unlawful purposes or toward unlawful ends. Cal. Motor Transp. Co. v.
Trucking Unlimited, 404 U.S. 508, 514 (1972) (quoting Giboney, 336 U.S. at 502) (recognizing that activity that is an integral part of illegal conduct does not receive petitioning clause protection). Here, the Amended
Complaint makes precisely that allegation. Speech can undoubtedly sometimes fall within grey areas. When this occurs, and where a jury needs to resolve
contested factual issues to determine whether speech or
Defendant cites cases which grant companies NoerrPennington immunity from prosecution for their petitioning activity even if they are aimed at foreign governments. However, those cases rest their conclusions on the scope of the Sherman Act itself and not on the First Amendment petition clause. Coastal States Mktg., Inc. v. Hunt, 694 F.2d 1358 (5th Cir. 1983); Carpet Group Intl v. Oriental Rug Importers Assn, Inc., 256 F. Supp. 2d 249 (D.N.J. 2003); Luxpro Corp. v. Apple Inc., 2011 WL 1086027 (N.D. Cal. Mar. 24, 2001). -63-
11
conduct is constitutionally protected, the court is well equipped to provided the jury appropriate instructions to handle this task. Freeman, 761 F.2d at 551, 552-53; United
States v. White, 610 F.3d 956, 962 (7th Cir. 2010) (Based on the full factual record, the court may decide to instruct the jury on the distinction between solicitation and advocacy, and the legal requirements imposed by the First Amendment.). Courts have regularly found it preferable to
tackle a First Amendment defense with a more complete evidentiary record at the summary judgment stage or at trial, rather than at the motion to dismiss stage. Curley
v. North Am. Man Boy Love Assn, 2001 WL 1822730, at *2 (D. Mass. Sept. 27, 2001); cf. White, 610 F.3d at 962 (Based on the full factual record, the court may decide to instruct the jury on the distinction between solicitation and advocacy, and the legal requirements imposed by the First Amendment.). At this stage, it is far from clear that the
First Amendment will foreclose liability on any set of facts that Plaintiff might show. In making this decision, the court is mindful of the chilling effect that can occur when potential tort liability -64-
is extended to unpopular opinions that are expressed as part of a public debate on policy. However, at this stage, the
Amended 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 Defendants motion to dismiss. E. State Law Claims. Counts IV and V of the Amended Complaint assert Massachusetts common law claims for civil conspiracy and negligence. Defendant seeks dismissal of these counts on First, he contends that under a proper
several grounds.
choice of law analysis, Massachusetts law simply does not apply to the facts alleged. govern. Ugandan law, if any, should
Second, he argues that both the civil conspiracy
and negligence claims are barred by the three-year statute of limitations. Finally, he takes the position that the
facts as set forth in the Amended Complaint are insufficient to make out claims under either theory. The court will deny
the motion to dismiss because (1) Massachusetts law governs -65-
this litigation and (2) the arguments asserting violation of the statute of limitations and failure to state a claim require development through discovery and may be re-assessed at the summary judgment stage on a fuller record. 1. Choice of Laws.
It is well-settled that district courts hearing state law claims apply the substantive law of the state in which the court sits, including that states choice-of-law rules. Servicios Comerciales Andinos, S.A. v. General Elec. Del Caribe, Inc., 145 F.3d 463, 478 (1st Cir. 1998); Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78 (1938). Massachusetts employs a functional choice of laws approach that is guided by the Restatement (Second) of Conflict of Laws (1971). Clarendon Natl Ins. Co. v. Arbella Mut. Ins.
Co., 803 N.E.2d 750, 752 (Mass. App. Ct. 2004). The Restatement instructs courts to apply the law of the state with the most significant relationship to the occurrence and the parties under the principles stated in 6. Restatement (Second) of Conflict of Laws 145 (1971).
Section 6 of the Restatement cites the following factors as relevant to choice of law decisions: -66-
(a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied. Id. at 6. In the tort context, the Restatement also sets out four factors to help determine which jurisdiction has the most significant relationship: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered. Id. at 145. Defendant is correct to note that the jurisdiction where the injury occurred normally has a significant interest in having its law apply because persons who cause injury in a state should not ordinarily escape liabilities
-67-
imposed by the local law of that state on account of the injury. cmt. 2. Restatement (Second) of Conflict of Laws 145(2), However, even when the injury (and, indeed, even
the conduct that caused the injury) occurs in a foreign location, Massachusetts choice-of-laws doctrine does not automatically apply foreign law. See, e.g., Robidoux v.
Muholland, 642 F.3d 20, 28 (1st Cir. 2011); Lou v. Otis Elevator Co., 933 N.E.2d 140, 150-51 (Mass. App. Ct. 2010). The court must weigh all the Restatement factors to determine the proper law to apply. Several factors other than the place of injury tip the balance in favor of Massachusetts law. First, Defendant is Plaintiff
a Massachusetts resident and an American citizen.
is not asking the court to apply a law that is foreign to Defendant, but rather the rules prevailing in his home country and Commonwealth. Second, as noted previously,
Plaintiff alleges that much of the actionable conduct occurred in Massachusetts. On the civil conspiracy claim particularly, a powerful, independent consideration supports application of Massachusetts law. Plaintiff, as Defendant concedes, would -68-
have no forum for this claim in Uganda.
Ugandan law
apparently does not recognize a cause of action for civil conspiracy. (Dkt. No. 33, Def.s Mem. 69.) In the absence
of any remedy for Plaintiff in Uganda, the interest of the Commonwealth of Massachusetts in adjudicating Plaintiffs civil conspiracy claim, recognized under its law, becomes more prominent. As the Supreme Judicial Court has
recognized, the state has an interest in maintaining a cause of action for this type of civil conspiracy which ensures that influence and power are not combined to interfere with individual rights. 366, 370 (Mass. 1922). See Willett v. Herrick, 136 N.E. This is particularly true when a
substantial part of the conduct supporting the conspiracy is alleged to have occurred within the Commonwealth. Problems in applying Ugandan law also plague the adjudication of the negligence claim, not because no Ugandan law is applicable, as with the civil conspiracy claims, but because the Ugandan law is unclear. One of the factors the
court can consider in determining the proper choice of law is the ease in the determination and application of the law to be applied. Restatement (Second) of Conflict of Laws -69-
6.
For this reason, the party seeking to apply foreign law,
here Defendant, must outline the substance of that law with reasonable certainty. See In re Avantel, S.A., 343 F.3d
311, 321-22 (5th Cir. 2003); cf. Carey v. Bahama Cruise Lines, 864 F.2d 201, 205 (1st Cir. 1988) (holding that parties who fail to give the court requisite notice of foreign law have waived their right to have foreign law applied). Defendant has done little to meet that burden here. the one paragraph in his memorandum describing Ugandan negligence law, Defendant notes only that Uganda law may recognize traditional negligence as a cause of action but that there is no indication that any novel duty of care principles apply. (Dkt. No. 33, Def.s Mem. 70.) Because In
Defendant has not described the substance of Ugandan negligence law in any detail, the court cannot take the first step in any choice of laws analysis; it cannot determine whether any actual conflict exists between the laws. See Cohen v. McDonnell Douglas Corp., 450 N.E.2d 581,
584 n.7 (Mass. 1983). In sum, although arguments exist on both sides, the -70-
functional choice of law approach counsels applying Massachusetts law to Counts IV and V. This conclusion
leaves Defendants arguments regarding statute of limitations and failure to state a claim. The discussion
below will address these contentions as they apply, first, to civil conspiracy and then to negligence. 2. Civil Conspiracy. a. Statute of Limitations.
Massachusetts applies a three-year statute of limitations to civil conspiracy claims. Mass. Gen. Laws ch.
260, 2A; Pagliuca v. City of Boston, 626 N.E.2d 625, 62728 (Mass. App. Ct. 1994). Defendant argues that the
limitations period begins to run with the first overt act. However, this accrual rule only applies to federal and state statutory civil rights claims, which are not asserted here. Pagliuca, 626 N.E.2d at 627-28 (distinguishing between the time-of-first-wrongful-act standard applicable to federal and state civil rights statutes and time-of-injury standard applicable to common law civil conspiracy). For a common law civil conspiracy claim, the cause of action accrues at the time the plaintiff is injured, or when -71-
he discovers or reasonably should have discovered the cause of the injury. Genereux, 577 F.3d at 359-63; Pagliuca, 626 Plaintiff filed its complaint on March
N.E.2d at 627-28. 14, 2012.
To obtain dismissal of a complaint based on the
statute of limitations, an affirmative defense, Defendant must point to sufficient facts offered in the complaint, or in other allowable sources of information, to show with certitude that Plaintiff knew or could have reasonably discovered the source of its injury before March 14, 2009. Cf. Gray v. Evercore Restructuring L.L.C., 544 F.3d 320, 324 (1st Cir. 2008); see also LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 509 (1st Cir. 1998) (noting that a motion to dismiss based on a limitations defense is entirely appropriate when the pleader's allegations leave no doubt that an asserted claim is time-barred). To prevail on his statute of limitations affirmative defense, Defendant must show that Plaintiff had (1) knowledge or sufficient notice that she was harmed and (2) knowledge or sufficient notice of what the cause of the harm was. 1990). Bowen v. Eli Lilly & Co., 557 N.E.2d 739, 742 (Mass. While Plaintiff was undoubtedly aware that some -72-
injuries occurred prior to 2009, Defendant has not adequately shown that Plaintiff had adequate notice before March 14, 2009, that Defendant contributed to these harms. As Plaintiff has noted in the Amended Complaint, Defendant did not publicly acknowledge his pivotal role in the antiLGBTI efforts in Uganda until after the March 2009 conference. Plaintiff has also alleged several harmful incidents that occurred within the last three years. The most recent
incidents, including the deliberately intimidating, mass disclosures of the identities of LGBTI peoples, as well as the arrests and raids targeted at Plaintiff and its activities, all occurred after March 2009. Given these
allegations, any assessment of the statute of limitations defense must await full discovery and possibly trial. b. Failure to State a Claim.
Massachusetts recognizes two types of civil conspiracy. The more typical kind is akin to a theory of joint liability in tort. Aetna Cas. Sur. Co. v. P & B Autobody, 43 F.3d However, Plaintiff argues that
1546, 1564 (1st Cir. 1994).
the second, more exceptional, type of civil conspiracy -73-
applies to Defendant.
With the second type, a plaintiff
need not allege an underlying tort, because the mere force of numbers acting in unison to injure a plaintiff constitutes a wrong. 243 (Mass. 1943). Weiner v. Lowenstein, 51 N.E.2d 241,
However, a plaintiff must show that
there was some peculiar power of coercion used by a combination of individuals on the plaintiff which any individual [alone,] standing in a like relation to the plaintiff would not have had. DesLauries v. Shea, 13
N.E.2d 932, 935 (Mass. 1938) (internal quotation omitted). In other words, the injury to a plaintiff must be the result of the combination of the defendants and not just the product of actions taken by more than one individual. In
one of the few successful civil conspiracy actions of this sort, the Massachusetts Supreme Judicial Court held that the plaintiffs had properly pled the claim when they alleged that the defendants had worked together to manipulate the plaintiffs business holdings to acquire certain obligations for themselves. Willett, 136 N.E. at 368-70. None of the
defendants could have accomplished the injurious result by themselves. Additionally, even if each of the individual -74-
actions were benign, the defendants were able to use their combined power and influence to destroy the plaintiffs credit and holdings. Id.
In successful claims offered under this theory, the plaintiff has shown that defendants had a peculiar commanding influence either through some type of unique power or fiduciary relationship or even mere numbers acting simultaneously that injured a plaintiff and lacked an excuse or justification. Johnson v. East Boston Savings In Johnson, for
Bank, 195 N.E. 727, 729-30 (Mass. 1930).
example, it was not enough to allege that several board members had worked together to defame the plaintiff after his termination. The court held that the reputational
import of termination was the same whether it was done by a board with many members or by one person. at 730. Johnson, 195 N.E.
The court must determine here if Plaintiff has
alleged that there was added force due to combination; that is, that the injury is greater specifically because of the combined force. Johnson, 195 N.E. at 730.
One decision has pointed out that the most common form of this kind of conspiracy is to be found in the combined -75-
action of groups of employers or employees, where through the power of combination pressure is created and results brought about different in kind from anything that could have been accomplished by separate individuals. Dane, 22 N.E.2d 609, 611 (Mass. 1939). Defendant argues that this sort of civil conspiracy is limited to the kind of direct economic coercion described in Fleming. It is true that some sort of economic coercion is See Fleming v.
typically the goal of this type of civil conspiracy.
Mass. Laborers Health & Welfare Fund v. Philip Morris, Inc., 62 F. Supp. 2d 236, 244 (D. Mass. 1999). At the same
time, nothing in the case law suggests that a plaintiff is limited to pleading purely economic coercion. Participation
in the kind of widespread, systematic campaign alleged in the Amended Complaint appears to fall within the possible boundaries of this cause of action. Alternatively, Defendant argues that Plaintiff has not adequately alleged that the coercive force exhibited by the conspiracy was peculiarly focused against Plaintiff. Mass. Laborers, 62 F. Supp. 2d at 245. This contention See
flies in the face of the allegations of the Amended -76-
Complaint, which charges that Defendant and his coconspirators took actions that deliberately singled out Plaintiff and its members for persecution. If the Amended
Complaint is accepted, the public in general was never the target; Plaintiff and the LGBTI community in Uganda were. This conspiracy-based coercion obviously had far more power than anything any one individual could have wielded, particularly in light of coordinated governmental and media initiatives associated with the conspiracy. At this motion
to dismiss phase, Plaintiffs Amended Complaint has sufficiently alleged that Defendant and his co-conspirators were exploiting a peculiar coercive power with the goal of injuring Plaintiff and its members. 3. Negligence. a. Statute of Limitations.
Massachusetts also applies a three-year statute of limitations to negligence claims. Mass. Gen. Laws ch. 260,
2A; Genereux v. Am. Beryllia Corp., 577 F.3d 350, 359 (1st Cir. 2009) (citing Olsen v. Bell Tel. Labs, Inc., 445 N.E.2d 609 (Mass. 1983)). Like the civil conspiracy claim, this
cause of action accrues at the time the plaintiff is -77-
injured, or reasonably discovers the cause of an injury. Genereux, 577 F.3d at 359-63; John Beaudette, Inc. v. Sentry Ins. A Mut. Co., 94 F. Supp. 2d 77, 108 (D. Mass. 1999). discussed in the civil conspiracy section, the Amended Complaint sets out that Plaintiff has been injured in the last three years and may not have had sufficient notice of Defendants involvement in the earlier alleged injurious actions until three years before the filing of the complaint. The facts of record are insufficient to permit As
the court to allow the motion to dismiss based on this affirmative defense at this stage. b. Failure to State a Claim.
Defendant argues that there is no duty of care to avoid creating a virulently hostile environment. (Dkt. No. 33,
Def.s Mem. 70 (quoting Dkt. No. 27, Am. Compl. 258).) This argument certainly has force, and the state law negligence claim appears to be substantively the most fragile of Plaintiffs asserted causes of action. be difficult for Plaintiff to assemble facts during discovery to justify a finding of liability based on the negligent creation of a dangerous situation. -78(Dkt. No. It will
27, Am. Compl. 259.)
Nevertheless, for now, the Amended
Complaint has offered the standard articulation of a negligence claim, alleging that Defendant failed to act with reasonable care, with resulting harm to Plaintiff. Onofrio
v. Dept of Mental Health, 562 N.E.2d 1341, 1344-45 (Mass. 1990). The protection of free speech set forth in the First
Amendment may make this count particularly difficult to defend at the summary judgment stage. decision for another day. IV. CONCLUSION For the foregoing reasons, Defendants motions to dismiss (Dkt. Nos. 21 and 30) are hereby DENIED. The case That, however, is a
is hereby referred to Magistrate Judge Kenneth P. Neiman for a pretrial scheduling conference pursuant to Fed. R. Civ. P. 16. It is So Ordered. /s/ Michael A. Ponsor MICHAEL A. PONSOR U. S. District Judge
-79-
Case: 13-2503
Case Document: 3:12-cv-30051-MAP 00116621208 Document Page: 273 64 Filed Date 09/06/13 Filed: 12/06/2013 Page 1 of 2 Entry ID: 5785627
DEFENDANT SCOTT LIVELYS MOTION TO AMEND AND CERTIFY NON-FINAL ORDER FOR INTERLOCUTORY APPEAL Pursuant to the Courts inherent authority to amend its non-final orders at any time prior to final judgment, Defendant Scott Lively respectfully moves the Court to amend its August 14, 2013 Order denying Livelys Motion to Dismiss (dkt. 59) (the Order), so as to include the following certification required for interlocutory appeals by 28 U.S.C. 1292(b): This Order involves controlling questions of law as to which there is substantial ground for difference of opinion and an immediate appeal from this Order may materially advance the ultimate termination of the litigation. As shown in the Memorandum in Support filed concurrently herewith, there are at least three such questions involved in the Order: 1) Whether a foreign plaintiff injured on foreign soil can maintain Alien Tort Statute claims against a U.S. citizen who allegedly aided and abetted from the United States tortious conduct on foreign soil; Whether persecution, generally or on sexual orientation or transgender grounds, is a clearly defined and universally accepted tort actionable under the Alien Tort Statute; and, Whether a United States Court may punish a United States citizen for conduct that is legal in the United States.
2)
3)
Many courts have already examined the first question since the Supreme Courts recent decision in Kiobel v. Royal Dutch Petroleum, and all of them have answered it in the negative, with
Case: 13-2503
one exception involving inapposite facts, which was itself certified for interlocutory appeal. And no court before or after Kiobel has ever answered the second and third questions in the affirmative. Because these questions are novel, weighty and controlling, and because there is substantial ground for disagreement with this Courts Order, Defendant respectfully requests that the Court amend and certify its Order for interlocutory appeal. Respectfully submitted, Philip D. Moran (MA Bar # 353920) 265 Essex Street, Suite 202 Salem, Massachusetts 01970 Tel: (978) 745-6085 Fax: (978) 741-2572 Email: philipmoranesq@aol.com /s/ Horatio G. Mihet________________ Mathew D. Staver Admitted Pro Hac Vice Stephen M. Crampton Admitted Pro Hac Vice Horatio G. Mihet Admitted Pro Hac Vice LIBERTY COUNSEL P.O. Box 540774 Orlando, FL 32854-0774 800-671-1776 Telephone 407-875-0770 Facsimile court@lc.org Attorneys for Defendant Scott Lively CERTIFICATE OF CONFERRAL Pursuant to L.R. D. Mass. 7.1(a)(2), I HEREBY CERTIFY that I conferred in good faith with counsel for Plaintiff, but was unable to resolve or narrow the issues raised herein. /s/ Horatio G. Mihet________________ Horatio G. Mihet Attorney for Defendant Scott Lively CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was filed electronically with the Court on September 6, 2013. Service will be effectuated by the Courts electronic notification system upon all counsel or parties of record. /s/ Horatio G. Mihet________________ Horatio G. Mihet Attorney for Defendant Scott Lively 2
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT SCOTT LIVELYS MOTION TO AMEND AND CERTIFY NON-FINAL ORDER FOR INTERLOCUTORY APPEAL
TABLE OF CONTENTS INTRODUCTION .. STANDARD FOR CERTIFICATION .. 1 2
ARGUMENT .. 4 I. There Is Substantial Ground for Difference of Opinion Concerning Whether a Foreign Plaintiff Injured on Foreign Soil Can Maintain ATS Claims Against a U.S. Citizen Who Allegedly Aided and Abetted from the U.S. Tortious Conduct on Foreign Soil ........... A. Eight Post-Kiobel Courts Have Dismissed ATS Claims Against U.S. Citizens, Notwithstanding Allegations of U.S. Conduct Far Greater than Livelys .. 1. 2. 3. 4. 5. 6. Balintulo v. Daimler AG, 09-2778-CV L, 2013 WL 4437057 (2d Cir. Aug. 21, 2013) ... Doe v. Exxon Mobil Corp., 09-7125, 2013 WL 3970103 (D.C. Cir. July 26, 2013) Giraldo v. Drummond Co., Inc., 2:09-CV-1041-RDP, 2013 WL 3873960 (N.D. Ala. July 25, 2013) ... Adhikari v. Daoud & Partners, 09-CV-1237, 2013 WL 4511354 (S.D. Tex. Aug. 23, 2013) . Al Shimari v. CACI Intl, Inc., 1:08-CV-827 GBL/JFA, 2013 WL 3229720 (E.D. Va. June 25, 2013) Three Other Post-Kiobel Courts Have Dismissed ATS Claims Against U.S. Citizens for Injuries on Foreign Soil
4 6 7 9 10 11
B.
Only One Post-Kiobel Court Has Retained ATS Jurisdiction on the Basis of U.S. Conduct Targeted at U.S. Citizens Overseas, and that Court Sua Sponte Certified its Decision for Interlocutory Appeal .
12
II.
There Is Substantial Ground for Difference of Opinion Concerning Whether Persecution, Generally and on Sexual Orientation or Transgender Grounds, is a Clearly Defined and Universally Accepted Crime Against Humanity Actionable under the Alien Tort Statute .. There Is Substantial Ground for Difference of Opinion Concerning Whether a U.S. Court May Punish a U.S. Citizen for Conduct Legal in the United States ... These Questions Are Controlling and their Resolution Will Materially Advance the Ultimate Termination of this Litigation
12
III.
17
IV.
19
INTRODUCTION This Court has concluded that the Supreme Courts decision in Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013), does not foreclose the Alien Tort Statute (ATS) claims of Sexual Minorities Uganda (SMUG), because Scott Lively (Lively) is a U.S. citizen residing in Massachusetts, and because [t]he Amended Complaint adequately sets out actionable conduct undertaken by the Defendant in the United States to provide assistance in the campaign of persecution in Uganda. (Order Denying M. to Dismiss, dkt. 59, p. 44) (Order). The Court based its conclusion on three things that Lively allegedly did in the United States: (1) following his 2002 visit to Uganda, Lively from the U.S. allegedly encouraged, assisted and advised Ugandan government officials and citizens to enact laws that restrict, and to oppose measures that relax, homosexual rights (Order at 44, citing Amd. Compl. 47, 55-56); (2) after a Ugandan High Court ruling favorable to homosexuals, Ugandan citizens contacted Lively in the U.S. to invite him to attend a March 2009 conference in Uganda, which he accepted (id., citing Amd. Compl. 36); and (3) after his visit to Uganda, Lively from the U.S. reviewed draft legislation considered by the Ugandan Parliament, provided advice and communicated with Ugandan Parliament members about the legislation that was never enacted. (Id. at 44-45, citing Amd. Compl. 140, 161). The Courts Order involves many novel, pivotal and controlling questions of law as to which there is substantial difference of opinion, and the resolution of which will either terminate this litigation or dramatically alter its scope. This memorandum addresses three such questions. First, there is substantial ground for difference of opinion concerning whether this alleged conduct of Lively in the U.S., even if true, is sufficient to overcome the extraterritorial bar on the ATS after Kiobel. Several courts have already examined far greater activities by U.S. citizens in the U.S., and, with one exception, have all concluded that they lack subject matter jurisdiction to adjudicate claims by foreign plaintiffs injured on foreign soil. The one court that came to a different conclusion did so on inapposite facts, and sua sponte certified its order for interlocutory appeal.
Second, there is substantial ground for difference of opinion concerning whether persecution, generally and on sexual orientation or transgender grounds, is a clearly defined and universally accepted crime against humanity actionable under the ATS. No other court has ever found that it is. Third, there is substantial ground for difference of opinion concerning whether a U.S. Court may constitutionally punish a U.S. citizen for doing in the U.S. the three things alleged of Lively. No other court has ever found that it can. These questions go to the very heart of this Courts subject matter jurisdiction and Livelys constitutional rights. The Court should amend and certify its Order for interlocutory appeal. STANDARD FOR CERTIFICATION Certification of a non-final order for interlocutory appeal is warranted where, as here, such order involves a controlling question of law as to which there is substantial ground for difference of opinion and an immediate appeal from the order may materially advance the ultimate termination of the litigation. 28 U.S.C. 1292(b). [C]ontrolling means serious to the conduct of the litigation, either practically or legally. Katz v. Carte Blanche Corp., 496 F.2d 747, 755 (3d Cir. 1974). A question of law is controlling even if its resolution would not automatically end the entire case, if the scope of the case would be significantly altered. Philip Morris Inc. v. Harshbarger, 957 F. Supp. 327, 330 (D. Mass. 1997) (certifying interlocutory appeal notwithstanding possibility that a reversal would leave something of the case); see also Katz, 496 F.2d at 755 (nor need a reversal of the order terminate the litigation). All that must be shown in order for a question to be controlling is that resolution of the issue on appeal could materially affect the outcome of the litigation in the district court. Philip Morris Inc., 957 F. Supp. at 330. [I]t can be concluded that there is a substantial ground for difference of opinion about an issue when the matter involves one or more difficult and pivotal questions of law not settled by 2
controlling authority. Philip Morris Inc., 957 F. Supp. at 330 (quoting McGillicuddy v. Clements, 746 F.2d 76, 76 n.1 (1st Cir. 1984)); see also In re Heddendorf, 263 F.2d 887, 889 (1st Cir. 1959) (certification proper when the proposed appeal presents a difficult central question of law which is not settled by controlling authority). In the absence of controlling authority, [t]he level of uncertainty required to find a substantial ground for difference of opinion should be adjusted to meet the importance of the question in the context of the specific case. 16 Charles A. Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure 3930 (2d ed. 1996). Therefore, if proceedings that threaten to endure for several years depend on an initial question of jurisdiction, . . . certification may be justified at a relatively low threshold of doubt. Id. Indeed, although interlocutory appeals are the exception rather than the rule, [s]uch an exceptional case might be one where the district court has denied a motion to dismiss for want of jurisdiction which raised a novel question and is reluctant to embark upon an extended and costly trial until assured that its decision on the motion to dismiss is sustained. In re Heddendorf, 263 F.2d at 888 (emphasis added). Accordingly, whether a district court lacks subject matter jurisdiction is a quintessential controlling question for purposes of Section 1292(b). Id.; see also United States v. Lahey Clinic Hosp., Inc., 399 F.3d 1, 7 (1st Cir. 2005). Finally, this Court need not conclude that its Order is erroneous to certify it for interlocutory appeal. Instead, the Court need only acknowledge that the Order involves at least one controlling question as to which there is substantial ground for difference of opinion. See, e.g., Al Maqaleh v. Gates, 620 F. Supp. 2d 51, 55 (D.D.C. 2009) (certifying interlocutory appeal although [the] Court believe[d] that its conclusions [were] correct); Brown v. Tex. & Pac. R.R., 392 F. Supp. 1120, 1126 (W.D. La. 1975) (certifying order for appeal even though in the [c]ourts mind there does not exist the strong possibility that the Memorandum Ruling was incorrect). The questions presented here clearly warrant interlocutory certification.
ARGUMENT I. There Is Substantial Ground for Difference of Opinion Concerning Whether a Foreign Plaintiff Injured on Foreign Soil Can Maintain ATS Claims Against a U.S. Citizen Who Allegedly Aided and Abetted from the U.S. Tortious Conduct on Foreign Soil. A. Eight Post-Kiobel Courts Have Dismissed ATS Claims Against U.S. Citizens, Notwithstanding Allegations of U.S. Conduct Far Greater than Livelys.
Although the Supreme Court decided Kiobel less than five months ago, at least eight courts appellate and trial alike have already considered domestic conduct by U.S. nationals far greater in scope than the three domestic activities SMUG alleges of Lively. All eight have concluded such conduct was insufficient to confer subject matter jurisdiction under the ATS for injuries sustained by foreign plaintiffs on foreign soil. SMUG will undoubtedly offer myriad reasons why these decisions are erroneous, and the Court may disagree with these holdings. What SMUG cannot deny, however, is that substantial ground exists for difference of opinion on this crucial aspect of the Courts subject matter jurisdiction. That is all that is needed to permit an immediate appeal. 1. Balintulo v. Daimler AG, 09-2778-CV L, 2013 WL 4437057 (2d Cir. Aug. 21, 2013).
In Balintulo, South African plaintiffs brought ATS class-action lawsuits against many defendants, including three U.S. corporate citizens DaimlerChrylser, Ford and IBM alleging that they aided and abetted crimes against humanity in South Africa, during that nations apartheid regime. 2013 WL 4437057 at *1. By the time the Supreme Court decided Kiobel, the district court in Balintulo had denied motions to dismiss and denied certification for interlocutory appeal, so the case was already before the Second Circuit on applications for mandamus relief. Id. at *3-4. The Second Circuit requested and received supplemental briefs on the impact of Kiobel. Id. at *4. To resist [the] obvious impact of the Kiobel holding on their claims, the Balintulo plaintiffs argued vociferously as SMUG does here that Kiobel has no application to ATS claims against U.S. defendants. Id. at *6. Plaintiffs also argued as SMUG does here that defendants took affirmative steps in this country to aid and abet apartheid, id. (emphasis added), 4
including that: (1) IBM manufactured computer hardware and software in, and provided technical support from, the U.S., all to the South African governments specifications, with the knowledge and purpose of enabling that government to carry out geographic segregation and denationalization, and to restrict black South Africans movements, track dissidents, and target particular individuals for repressive acts; and (2) Ford and DaimlerChrylser manufactured vehicles, parts and other equipment in the U.S., specifically for the apartheid security forces, and to the specification of the South African government, with the knowledge and purpose that the vehicles would be used to implement apartheid and perpetrate crimes against humanity. Id. at *3. The Second Circuit was not persuaded, and concluded that the Supreme Court's holding in Kiobel plainly bars the plaintiffs' claims. Id. at *9 (emphasis added). The Supreme Court expressly held that claims under the ATS cannot be brought for violations of the law of nations occurring within the territory of a sovereign other than the United States. The majority focus[ed] solely on the location of the relevant conduct or violation ; and it affirmed our judgment dismissing the plaintiffs' claims because all the relevant conduct took place outside the United States. Lower courts are bound by that rule and they are without authority to reinterpret the Court's binding precedent in light of irrelevant factual distinctions, such as the citizenship of the defendants. Accordingly, if all the relevant conduct occurred abroad, that is simply the end of the matter under Kiobel. Id. at *7 (emphasis added) (internal citations and footnotes omitted). Kiobel thus means that a common-law cause of action brought under the ATS cannot have extraterritorial reach simply because some judges, in some cases, conclude that it should. Id. at *8. The court expressly rejected plaintiffs allegations of domestic conduct that aided and abetted apartheid, concluding that the place of the actual human rights violations themselves controls. Id. To hold otherwise would conflate the extraterritoriality analysiswhich asks where the violation of the law of nations occurred,with the question of derivative liability. Id. at *8, n.28 (internal citations omitted). A contrary result would give impermissible effect to Kiobels concurring minority, which did not garner sufficient votes to control. Id. at *6. The Second Circuit instructed the district court to grant judgment as a matter of law for the defendants. Id. at *9-10. 5
The U.S.-made automobiles and computers at issue in Balintulo fit squarely within this Courts analogy of bombs designed and manufactured in this country with the intent that they explode on foreign soil. (Order at 39). There is, therefore, substantial ground for difference of opinion as to whether subject matter jurisdiction lies over alleged acts of persecution occurring on foreign soil, by virtue of U.S. conduct that allegedly aided and abetted that persecution. 2. Doe v. Exxon Mobil Corp., 09-7125, 2013 WL 3970103 (D.C. Cir. July 26, 2013) (Doe II).
In Doe II, the D.C. Circuit Court of Appeals vacated its earlier decision in Doe v. Exxon Mobil Corp., 654 F.3d 11 (D.C. Cir. 2011) (Doe I), in light of Kiobel. In Doe I, the D.C. Circuit had held that Indonesian plaintiffs could sue Exxon, a U.S. corporate citizen, under the ATS for aiding and abetting crimes against humanity at Exxons natural gas extraction facility in Indonesia. 654 F.3d at 14-15. The Doe I court reasoned that the extraterritoriality cannon does not bar appellants from seeking relief based on Exxons alleged aiding and abetting of international law violations committed in Indonesia, id. at 26, because plaintiffs alleged that a U.S. citizen is a cause of the[ir] harm, and claimed that Exxon engaged in acts in the United States that were part and parcel of the harm they suffered. Id. at 27-28 (emphasis added). Exxon sought a rehearing en banc, but its request was held in abeyance pending the Supreme Courts decision in Kiobel. Following Kiobel, the Doe II court requested briefing on Kiobels impact. Plaintiffs sought to capitalize on the Doe I courts understanding of extraterritoriality by emphasizing that, unlike the defendants in Kiobel, Exxon was a U.S. corporate citizen, with its principal place of business in the U.S.; Exxon exerted significant control over [its Indonesian subsidiary]s security; significant conduct took place in the United States; and Exxon provided from the U.S. significant guidance and participation in the acts of violence perpetrated against plaintiffs in Indonesia. 1
Plaintiffs Post-Kiobel Brief, Doe v. Exxon Mobil Corp., doc. # 1436741, pp. 6, 12-13, 15-16 (D.C. Cir. May 17, 2013) (No. 09-7125).
The Doe II court was not persuaded and vacated its holding in Doe I, in light of intervening changes in governing law regarding the extraterritorial reach of the Alien Tort Statute. 2013 WL 3970103 at *1 (citing Kiobel). It thus reinstated the district courts dismissal of the ATS claims for lack of subject matter jurisdiction. Id. Although the D.C. Circuit is allowing the district court further consideration on remand, its decision to vacate rather than affirm Doe I indicates that the court no longer believes as it did in Doe I that significant conduct in the U.S. by a U.S. citizen, which aids and abets torts on foreign soil, is sufficient to confer ATS jurisdiction. 3. Giraldo v. Drummond Co., Inc., 2:09-CV-1041-RDP, 2013 WL 3873960 (N.D. Ala. July 25, 2013).
The plaintiffs in Girlado were Columbian nationals who alleged that the Defendants (citizens and entities from the United States) committed acts in the United States in furtherance of human rights abuses in Colombia. 2013 WL 3873960 at *1 (emphasis added). Plaintiffs alleged that Drummond, a U.S. mine operator, and its U.S.based officers committed crimes against humanity by aiding and abetting Columbian paramilitaries to murder Columbian civilians in Columbia. Id. at *2. To survive Kiobel, plaintiffs assembled an impressive array of domestic conduct by domestic individuals and entities which they claimed was central to implementing the war crimes and extrajudicial killings in Columbia, including that: [1] Drummond's decision to provide material support to the [paramilitaries] and commissioning others to engage in war crimes and extrajudicial killings was made by [Drummond]'s CEO, Garry Drummond, in Alabama; [2] the relevant decision-making to provide material support to the [paramilitaries] was made in the United States; [3] Jim Adkins would travel frequently to Alabama to meet directly with Garry Drummond to agree on everything that Adkins had to do, obtained Garry Drummond's agreement in 1996 to start paying the [paramilitaries], [and] the plan was implemented by Adkins bringing $10,000 in cash payments from Alabama to Colombia to evade the law and Drummond's accounting system; [4] Drummond's Alabama-based officers, including Garry Drummond and Mike Tracy, made the decision to fund, and approved, payments to the Colombian military; [5] Drummond controls operations in Colombia from its headquarters in Alabama; and [6] Jim Adkins acted as Drummond's agent when he implemented the plan for Drummond to support the AUCs war effort in the area of Drummond's operations. Id. at *5-6 (emphasis added). 7
Plaintiffs in Girlado argued, as SMUG does here, that Kiobel had no impact because it concerned only foreign defendants and foreign conduct. Id. at *4-5. The court disagreed, and concluded that Plaintiffs claims cannot survive the seismic shift that Kiobel has caused on the legal landscape. Id. at *1. The court did doubt plaintiffs ability to prove the domestic conduct they alleged. Id. at *6-8. Critically, however, the court assumed for the sake of argument that plaintiffs could, in fact, prove their allegations of domestic conduct at trial, but concluded that plaintiffs theory on extraterritorial reach still does not hold water based on the most logical and unstrained reading of Kiobel. Id. at *8 (emphasis added). The court reasoned that Kiobel relied on Morrison v. National Australia Bank Ltd., 130 S.Ct. 2869 (2010), and affirmed Morrisons holding that the extraterritorial analysis depended not upon the place where the deception originated, but upon the focus of the statute at issue. Giraldo, 2013 WL 3873960 at *8 (emphasis added) (quoting Morrison, 130 S.Ct. at 2884). Since the ATS focuses on the torts of extrajudicial killings and war crimes (violations of the law of nations), and the tort at issue occurred abroad, in Columbia, and not in the United States, the court concluded it had no jurisdiction. Id. at *8 (italics in original). Notably, the court specifically rejected the same argument advanced by SMUG that planning, preparation, approval and assistance provided from the United States to perpetrators of torts abroad sufficiently touches and concerns the United States to displace the presumption against extraterritoriality: Plaintiffs can no more contend that approval in the United States of conduct committed abroad provides a basis for jurisdiction than could the plaintiffs in Morrison contend that fraudulent acts in the United States establish jurisdiction when the focus of the claimpurchases and sales of securitiesoccurred entirely abroad. In fact, Morrison went so far as to state that the analysis depended not upon the place where the deception originated and rejected the Solicitor General's proposal to displace the presumption where an alleged violation involves significant conduct in the United States that is material to the fraud's success. Morrison, 130 S.Ct. at 2884. Id. at * 8, n.6 (emphasis added). 8
Finally, the court rejected ATS claims not only against Drummond, but also against its officers who, like Lively, were U.S. citizens residing in the U.S.. See, e.g., Giraldo v. Drummond Co., Inc., 2:09-CV-1041-RDP, 2013 WL 3873965, *3 (N.D. Ala. July 25, 2013) (separate opinion rejecting ATS claims against Mike Tracy, for the same reasons as Drummond). Thus, the Giraldo court is also in sharp disagreement with this Courts surmising that [a]rguably, a different rationale may apply to a natural U.S. citizen than an American corporation. (Order at 45, n.8). Livelys alleged conduct in the U.S. in support of the alleged persecution abroad (i.e., assisting in the passage or defeat of legal measures dealing with homosexual rights, commenting on drafts of proposed legislation that never passed, and accepting an invitation to speak in Uganda) pales in comparison to the domestic conduct found insufficient for jurisdiction in Giraldo (i.e., providing material support, including management and finances, to paramilitaries engaged in killing civilians). There is thus a clear difference of opinion as to whether the ATS can reach material support conduct in the U.S., when the alleged crimes against humanity themselves, and the alleged injuries therefrom, were indisputably perpetrated, if at all, on foreign soil. 4. Adhikari v. Daoud & Partners, 09-CV-1237, 2013 WL 4511354 (S.D. Tex. Aug. 23, 2013).
Plaintiffs in Adhikari brought ATS human-trafficking claims against KBR a U.S. entity headquartered in Texas alleging that KBR forcefully transported their Nepalese relatives to Iraq, where they were killed. 2013 WL 4511354 at *1-2. To survive Kiobel, plaintiffs argued that: KBRs Texas and Virginia offices were actively involved in managing KBRs human trafficking-related activities. From the United States, KBR employees such as Jill Pettibone helped strategize key decisions . KBRs U.S.-based employees also managed KBRs human trafficking-related activities in Iraq. KBRs United States employees managed key decisions related to human trafficking, including developing training programs and revising contracts in response to the militarys trafficking-related directives. KBRs U.S.-based employees also managed KBRs response to press inquiries into human trafficking, as yet further evidence of KBRs U.S.-based management of trafficking-related activities in Iraq. 9
This is not a case involving an isolated instance of misconduct committed abroad by the employees or agents of a U.S. corporation. This case involves the ongoing and substantial involvement not only of the corporation generally but its U.S.-based officials and managers specifically. 2 The court, however, rejected the ATS claims because Plaintiffs have not demonstrated sufficient domestic conduct by KBR to displace the presumption. 2013 WL 4511354 at *7. Conceptually, the Adhikari plaintiffs claim that officials, employees or agents managed, planned and oversaw from the U.S. the persecution of plaintiffs in a foreign land is no different than SMUGs allegations against Lively. The only difference is the far greater scope and detail of U.S.-based conduct that was alleged but deemed insufficient in Adhikari. 5. Al Shimari v. CACI Intl, Inc., 1:08-CV-827 GBL/JFA, 2013 WL 3229720 (E.D. Va. June 25, 2013).
In Al Shimari, the court dismissed the ATS claims of four Iraqi citizens, who claimed that a U.S. military contractor and its Virginia-based employees committed war crimes and torture at a detention facility in Iraq. 2013 WL 3229720 at *1-2. To survive Kiobel, plaintiffs highlighted that they were suing a U.S. defendant, with extensive U.S. operations, who aided and abetted war crimes in Iraq from the United States. Id. at *2, 8. The court rejected this argument, concluding that Kiobel, read in light of Morrison, precluded subject matter jurisdiction over claims of foreign nationals who were injured on foreign soil, even where the defendant is a U.S. entity and is alleged to have planned and coordinated its conduct from the United States. Id. at *8-10. This Court has already indicated its disagreement with Al Shimari (Order at 45, n.8), which underscores the substantial ground for difference of opinion on this crucial jurisdictional question. What this Court may not know, however, is that plaintiffs in Al Shimari were represented by Mr. Baher Azmy, who also represents SMUG here. To survive Kiobel, Mr. Azmy told the Al Shimari court that:
Plaintiffs Post-Kiobel Brief, dkt. 593, pp. 32-35, Adhikari v. Daoud & Partners (S.D. Tx.) (09-CV-1237) (emphasis added).
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if the present case would not overcome this presumption, there could be no case that would; 3 and we stress so much how the constellation of these facts more than frankly any other ATS case that I'm aware of in the country would meet the touch and concern analysis because of U.S. legislative control over Iraq at the time, because of the U.S. corporation and because of continuing corporate practices in the United States that contributed to the conspiracy. 4 SMUG would therefore be hard pressed to now argue that its case against Lively of which its counsel was keenly aware when these representations were made presents more U.S. conduct than Al Shimari. The only argument left for SMUG is that Al Shimari was incorrectly decided, which only confirms the existence of substantial ground for difference of opinion. 6. Three Other Post-Kiobel Courts Have Dismissed ATS Claims Against U.S. Citizens for Injuries on Foreign Soil.
Three other courts have applied Kiobel to reach the same result. See Ahmed-Al-Khalifa v. Queen Elizabeth II, 5:13-CV-103-RS-CJK, 2013 WL 2242459, *1 (N.D. Fla. May 21, 2013) (dismissing foreign plaintiffs ATS claims against President Obama and several U.S. corporations for aiding and abetting from the U.S. the South African apartheid); Ahmed-Al-Khalifa v. Obama, 1:13-CV-49-MW/GRJ, 2013 WL 3797287, *1-2 (N.D. Fla. July 19, 2013) (holding that Kiobel precludes subject matter jurisdiction over an ATS claim that President Obama conspired with two foreign officials to persecute individuals in China and North Korea); Mwangi v. Bush, CIV.A. 5:12-373-KKC, 2013 WL 3155018, *2, 4 (E.D. Ky. June 18, 2013) (dismissing foreign plaintiffs ATS claims against former President George H.W. Bush and his family, who allegedly orchestrated their conduct from the U.S., embarked on visits to Kenya from the U.S., and conspired with Kenyan actors to abuse plaintiff in Kenya).
Plaintiffs Post-Kiobel Brief, dkt. 399, p. 25, Al Shimari v. CACI Intl Inc., (E.D. Va. 2013) (No. 08-827) (emphasis added) (available at http://ccrjustice.org/files/399_201305.03%20Opposition%20ATS%20re%20Kiobel.pdf, last visited August 31, 2013). Transcript of Oral Argument, pp. 23-24, Al Shimari v. CACI Intl Inc., (E.D. Va. 2013) (No. 08-827) (emphasis added) (available at http://ccrjustice.org/files/Al%20Shimari%20v.%20CACI%205-10-13.PDF, last visited August 31, 2013).
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B.
Only One Post-Kiobel Court Has Retained ATS Jurisdiction on the Basis of U.S. Conduct Targeted at U.S. Citizens Overseas, and that Court Sua Sponte Certified its Decision for Interlocutory Appeal.
The only other court to reach a different outcome following Kiobel is Mwani v. Bin Laden, CIV.A. 99-125 JMF, 2013 WL 2325166 (D.D.C. May 29, 2013). The Mwani court concluded that Kiobel did not preclude jurisdiction over claims against Usama bin Laden, Al Qaeda and other foreign defendants arising from the bombing of the U.S. embassy in Kenya. 2013 WL 2325166 at *1-5. Although overt acts in furtherance of that conspiracy took place within the United States, the court rested its decision heavily on the fact that the events at issue in this case were directed at the United States government, with the intention of harming this country [the U.S.] and its citizens [and] this attack was orchestrated not only to kill both American and Kenyan employees inside the building, but to cause pain and sow terror in the embassy's home country, the United States. Id. at *4 (emphasis added) (internal quotes and citations omitted). Even with this crucial factual distinction not present here, the court in Mwani acknowledged that there may be a substantial difference of opinion among judges whether [its interpretation of Kiobel] is correct, and sua sponte certified its order for interlocutory appeal. Id. at *4-5. If even domestic overt acts in furtherance of an attack on U.S. citizens and the U.S. government abroad trigger substantial difference of opinion, then surely allegations of U.S. conduct directed entirely at foreign nationals on foreign soil give rise to even greater difference of opinion, as exemplified by the cases above. This Court should follow Mwani and certify its Order for interlocutory appeal. II. There Is Substantial Ground for Difference of Opinion Concerning Whether Persecution, Generally and on Sexual Orientation or Transgender Grounds, is a Clearly Defined and Universally Accepted Tort Actionable under the ATS. This Court has concluded that it has subject matter jurisdiction over SMUGs ATS claims because persecution is a clearly defined and universally accepted crime against humanity. (Order at 20). There is substantial difference of opinion on this pivotal question, as well as on whether Livelys conduct could plausibly constitute persecution or aiding and abetting persecution. 12
It is not enough to find that crimes against humanity in general are actionable under the ATS, nor that persecution can rise to the level of a crime against humanity. [T]he requirement of universality goes not only to recognition of the norm in the abstract sense, but to agreement upon its content as well. Xuncax v. Gramajo, 886 F. Supp. 162, 187 (D. Mass. 1995) (emphasis added) (dismissing ATS claims for cruel, inhuman, or degrading treatment because, although proscribed generally by major international agreements on human rights, there was no universal agreement as to what specific acts constitute this tort). [T]he offense must be based on present day, very widely accepted interpretations of international law: the specific things the defendant is alleged to have done must violate what the law already clearly is. Mamani v. Berzain, 654 F.3d 1148, 1152 (11th Cir. 2011) (emphasis added) (dismissing ATS claim for crimes against humanity because, although some crimes against humanity are recognized, there is no universal consensus that the specific conduct alleged constitutes such crimes). 5 Although courts have found that certain crimes against humanity are sufficiently defined and accepted to be actionable under the ATS, no court has ever even defined the elements of persecution, much less imposed liability for persecution as a crime against humanity under the ATS. Even decisions of international tribunals cited by SMUG and relied upon by this Court confirm the lack of universal agreement on the existence and content of persecution: Unfortunately, although often used, the term [persecution] has never been clearly defined in international criminal law nor is persecution known as such in the worlds major criminal justice systems. [C]rimes of the persecution type [are] composed of acts that may be punishable by domestic criminal law but which are not necessarily all punishable nor everywhere.
See also, Forti v. Suarez-Mason, 694 F. Supp. 707, 712 (N.D. Cal. 1988) (To be actionable under the Alien Tort Statute the proposed tort must be characterized by universal consensus in the international community as to its binding status and its content. In short, it must be a universal, definable, and obligatory international norm) (italics in original) (dismissing ATS claim for cruel, inhuman and degrading treatment because of definitional gloss and lack of universal agreement over its elements); In re Terrorist Attacks on September 11, 2001, 714 F.3d 118, 125 (2d Cir. 2013) (We regrettably are no closer now ... to an international consensus on the definition of terrorism or even its proscription; Moreover, there continues to be strenuous disagreement among States about what actions do or do not constitute terrorism .) (emphasis added) (affirming dismissal of ATS claim).
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Prosecutor v. Tadic, Case No. IT-94-1-T, Judgment, 694 (May 7, 1997) (emphasis added) (quotes omitted) (cited by SMUG at dkt. 38, pp. 24, 26, and by the Court at Order, pp. 25, 27). This Court, therefore, had to look solely to the Rome Statute to derive a definition (Order at 24), an international treaty that the U.S. has expressly rejected. Doe I, 654 F.3d 11, 35-36, n.22. The Supreme Court, in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), held that an international instrument that does not itself create obligations enforceable in the federal courts cannot be used to derive the existence or content of international norms. Id. at 734-35. There is, therefore, substantial difference of opinion as to whether the Rome Statute can be used to determine the existence or elements of persecution. See Doe I, 654 F.3d at 36, 39 (The Rome Statute does not constitute customary international law) (declining to employ the Rome Statue to derive elements of aiding and abetting liability); Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 118 (2d Cir. 2008) (rejecting the Geneva Protocol as source of customary international law during the Vietnam conflict because of the nature and scope of the reservations to ratification); Flores v. S. Peru Copper Corp., 414 F.3d 233, 258 (2d Cir. 2003) (rejecting the American Convention on Human Rights as a source of customary international law because the U.S. has not ratified it, which indicat[es] that this document has not even been universally embraced by all of the prominent States within the region in which it purports to apply). 6 Even if persecution on political, racial or religious grounds were a clearly defined and universally accepted international tort, there is substantial ground for difference of opinion whether persecution on sexual orientation or transgender grounds is sufficiently clearly defined and universally accepted to confer subject matter jurisdiction under the ATS.
Moreover, noting that persecution under the Rome Statute is defined as the intentional and severe deprivation of fundamental rights, (Order at 24), this Court concluded that in determining what constitutes a basic right, international courts have looked to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. (Id. at 25). But the Supreme Court has held that neither of those two international agreements is useful in determining international norms, because the Declaration does not of its own force impose obligations as a matter of international law, and the Covenant did not itself create obligations enforceable in the federal courts. Sosa, 542 U.S. at 734-35.
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First, as this Court has noted, the international treaties and instruments that provide jurisdiction over crimes against humanity list particular protected groups without specifying LGBTI people. (Order at 25). Because [t]he ATS is no license for judicial innovation, and [h]igh levels of generalities will not do, Mamani, 654 F.3d at 1152, there is substantial ground for difference of opinion as to whether a clearly defined and universally accepted norm can be derived from the general savings clause of an instrument that does not otherwise spell out a legal proscription. 7 Indeed, Defendant has been unable to find any other ATS decision that recognized a clearly defined and universally accepted international norm emanating from general savings clauses of otherwise silent international agreements. Even the decisions of the ICTY tribunal cited by SMUG have repeatedly confined persecution to categories that do not include sexual orientation. See e.g., Prosecutor v. Tadic, 697 (to constitute persecution, the discrimination must be on specific grounds, namely race, religion or politics) (emphasis added); Prosecutor v. Perisic, Case No. IT04-81-T, Judgment, 118 (September 6, 2011) (persecution requires an intention to discriminate on political, racial or religious grounds) (emphasis added). 8
7
Compare Order at 26 (deriving an international norm of LGBTI protected status from the savings clause of the Rome Statute), with In re S. African Apartheid Litig., 617 F. Supp. 2d 228, 251 (S.D.N.Y. 2009) (declining to read between the lines of the Rome Statute to find a tort of apartheid by a non-state actor, even though such a construction is theoretically possible, because the failure to expressly provide for it demonstrates that private apartheid is not a uniformly-accepted prohibition of international character); and Flores, 414 F.3d at 255 (an international agreements lack of limitations as to how or by whom these rights may be violated, cannot be construed as license for limitless application, and must be construed as an indication that the asserted norm is not clear, definite and unambiguous); and id. at 258-59 (refusing to find an international norm against pollution within the United Nations Convention on the Rights of the Child, because the instrument failed to specifically address pollution); and Sosa, 542 U.S. at 728, 736, n.27 (cautioning that [w]e have no congressional mandate to seek out and define new and debatable violations of the law of nations, and concluding that consensus in many national constitutions against arbitrary detention was insufficient to recognize a cause of action under the ATS, because the consensus was at a high level of generality and the constitutions did not expressly prohibit the precise conduct at issue).
8
SMUG attempts to cast these crucial limitations aside, by arguing that the ICTY tribunals jurisdiction was statutorily limited to persecution on these specific grounds. (Dkt. 38, p. 26, n.10). This argument, however, proves too much. The admitted exclusion of sexual orientation and transgender identity from ICTYs jurisdiction cannot possibly be construed to mean that this category of persecution is clearly defined and universally recognized in international law. It means exactly the opposite. Like the ICTY tribunal, this Courts jurisdiction is also statutorily limited, as the ATS prohibits recognition of torts whose existence, scope and content are not clearly defined and universally recognized. Sosa, 542 U.S. at 738.
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Second, there is substantial difference of opinion as to whether a clearly defined and universally accepted norm proscribing persecution on sexual orientation or transgender grounds can be found notwithstanding the undisputed fact that half or more of the nations on earth do not observe such proscriptions. 9 The Supreme Court has held that it is one thing to label a handful of rogue nations as international law breakers and find that a norm is universally accepted notwithstanding their refusal to abide by it, but another thing entirely to conclude that half the worlds countries are rogue states, while the other half are following a universally accepted norm: It is not that violations of a rule logically foreclose the existence of that rule as international law. Nevertheless, that a rule as stated is as far from full realization as the one Alvarez urges is evidence against its status as binding law; and an even clearer point against the creation by judges of a private cause of action to enforce the aspiration behind the rule claimed. Sosa, 542 U.S. at 738, n.29 (emphasis added). The Sosa Court specifically considered an academic survey of national constitutions. Id. at 736, n.27 (citing Bassiouni, Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions, 3 Duke J. Comp. & Int'l L. 235, 260261 (1993)). The survey indicated that [t]he right to be free from arbitrary arrest and detention is protected in at least 119 national constitutions. Bassiouni, 3 Duke J. Comp. & Int'l L. at 261 (emphasis added). If acceptance of a norm by 119 out of 200+ nations falls short of full realization as required for jurisdiction under the ATS, surely there is substantial ground for difference of opinion as to whether the ATS can recognize norms which, according to SMUGs own statistics, are followed by only six, twenty or fifty-two nations. (See note 9).
SMUGs own statistics plainly demonstrate that the protections it advances for homosexual, transgender and intersex persons are not implemented in half or more of the worlds nations. (Opposition to M. to Dismiss, dkt. 35, pp. 42-43) (claiming that: only 6 countries have explicit constitutional prohibitions against discrimination based on sexual orientation; only 19 countries prohibit[] discrimination in employment based on gender identity; only 20 countries grant asylum due to a claim of persecution based on sexual orientation; only 24 countries prohibit incitement to hatred based on sexual orientation; only 52 countries prohibit discrimination based on sexual orientation in employment; and only 113 countries have moved to repeal laws criminalizing homosexual conduct, though not all of them have succeeded). Although the number fluctuates, there are upwards of 200 countries in the world.
16
SMUG nevertheless claims that sexual orientation persecution should be universally proscribed, but this argument is foreclosed by Sosa, 542 U.S. at 738 (emphasis added): Whatever may be said for the broad principle Alvarez advances, in the present, imperfect world, it expresses an aspiration that exceeds any binding customary rule having the specificity we require. Creating a private cause of action to further that aspiration would go beyond any residual common law discretion appropriate to exercise. See also Mamani, 654 F.3d at 1152 (We do not look at these ATS cases from a moral perspective, but from a legal one. We do not decide what constitutes desirable government practices.). III. There Is Substantial Ground for Difference of Opinion Concerning Whether a U.S. Court May Punish a U.S. Citizen for Conduct Legal in the United States. At the end of the day, the only connection which SMUG can allege between Lively and the alleged acts of persecution in Uganda is that Lively vilified the targeted community to inflame public hatred against it, and advised citizens how to pursue, and members of the Ugandan government how to enact, legislation restricting homosexual rights. (Order at 34). Assuming that SMUG could establish such conduct, and that it took place substantially in the U.S., there is no question that such conduct would not be unlawful in the U.S.. Speech on public issues occupies the highest rung of the hierarchy of First Amendment values and is entitled to special protection. Snyder v. Phelps, 131 S. Ct. 1207, 1211 (2011). [T]hreats of vilification or social ostracism are fully protected speech. N. A. A. C. P. v. Claiborne Hardware Co., 458 U.S. 886, 926 (1982). There is currently a robust and often bitter debate in the U.S. as to whether homosexual rights should be restricted. Countless Americans are involved in intense advocacy over constitutional amendments and laws restricting marriage to heterosexual couples; opposing ordinances extending benefits or legal protections to homosexual or transgendered persons; opposing federal legislation prohibiting discrimination in employment based upon sexual orientation; and vigorously arguing these issues in the courts. At the same time, many other Americans question the wisdom of these efforts. But no one would dare file a federal lawsuit alleging that those responsible for enactment of marriage amendments in 30+ states, or for defeating the Employment Non-Discrimination Act, or for defeating transgender bathroom bills are somehow 17
perpetrating widespread and systematic attacks against a civilian population, are responsible for the intentional and severe deprivation of fundamental rights, and are therefore guilty of the crime against humanity of persecution. No one would claim that private citizens advocating such measures conspired with or aided and abetted legislators to enact laws that constitute crimes against humanity, especially if, as is the case here, the legislation in question never passed. While speech which is an integral part of a crime is not protected, (Order at 59), there is no question that vilifying a targeted group and engaging the legal and political process over rights afforded that group is neither a crime nor aiding and abetting a crime. At the very least, a contrary judicial determination is subject to substantial ground for difference of opinion. That Livelys alleged conduct is fully protected political expression in the United States is not merely further proof that there is no clearly defined and universally recognized international norm that proscribes it, although it certainly is that. Flores, 414 F.3d at 257, n.33. (it is highly unlikely that a purported principle of customary international law in direct conflict with the recognized practices and customs of the United States could be deemed to qualify as a bona fide customary international law principle). Cf., Mamani, 654 F.3d at 1152 (the specific things the defendant is alleged to have done must violate what the law already clearly is). The legality of Livelys alleged conduct in the U.S. also raises serious due process and free speech questions about whether a U.S. court can punish it: We see no reasons why acts that are legal and protected if done in the United States should in a United States court become evidence of illegal conduct because performed abroad. We also reject the idea that the availability of petitioning immunity turns on the political persuasion of the government involved. The political character of the government to which the petition is addressed should not taint the right to enlist its aid. Coastal States Mktg., Inc. v. Hunt, 694 F.2d 1358, 1366-67 (5th Cir. 1983); see also Coca-Cola Co. v. Omni Pac. Co., 1998 U.S. Dist. LEXIS 23277, *28-30 (N.D. Cal. Dec. 9, 1998) (agreeing with Coastal States, and declining to impose liability for conduct directed at foreign government that was legal in the United States). This would be true even if the right to petition does not fully extend to foreign governments, Coca-Cola, Co. at *29, which is itself a controlling and dispositive question 18
never before decided by the First Circuit. 10 And it must be doubly true here, where SMUG cannot identify a single law that Lively advocated or commented upon which was actually enacted. IV. These Questions Are Controlling and their Resolution Will Materially Advance the Ultimate Termination of this Litigation. There can be no serious dispute that these questions are sufficiently controlling to warrant certification. Resolution of Question III could bar SMUGs ATS and state law claims, and thus terminate the litigation. SMUGs state law claims could conceivably survive resolution of Questions I and II, but that does not make those questions less pivotal. As shown on pages 2-3, supra, a question need not dispose of the entire case to be controlling. SMUG would be hard pressed to contend that an issue earning two trips to the Supreme Court in Kiobel, generating hundreds of pages of briefing in this case, and receiving dozens of pages in the Courts Order is, after all, not serious to the conduct of the litigation, either practically or legally. Katz, 496 F.2d at 755. SMUG also could not show that resolution of Questions I and II in Livelys favor would not significantly alter the scope of the case. Philip Morris Inc., 957 F. Supp. at 330. SMUG filed this case solely as a persecution case under the ATS, (dkt. 1), adding its two state law claims only as an afterthought. (Dkt. 27). This Court has already indicated appropriate skepticism over the viability of at least one of SMUGs two state law claims. (Order at 78-79). The ATS questions presented herein go to the very heart of this Courts subject-matter jurisdiction, which the First Circuit has identified as a quintessential issue for interlocutory appeal.
10
The First Circuit (or any other Circuit, for that matter) has never limited petitioning immunity to ones own government. Munoz Vargas v. Romero Barcelo, 532 F.2d 765, 766 (1st Cir. 1976) (no remedy even against private persons who urge the enactment of laws, regardless of their motives); Tomaiolo v. Mallinoff, 281 F.3d 1, 11 (1st Cir. 2002) (same). One of the two district court cases relied upon by this Court (Order at 62) to establish this limitation, Australia/E. U.S. A. Shipping Conference v. United States, 537 F. Supp. 807 (D.D.C. 1982), was vacated, 1986 WL 1165605 (D.C. Cir. Aug. 27, 2086), and has not been used to confine First Amendment protections to the United States. The other district court case (Order at 62), Occidental Petroleum Corp. v. Buttes Gas & Oil Co., 331 F. Supp. 92 (C.D. Cal. 1971), has been repeatedly rejected as the minority view. See, e.g., Friends of Rockland Shelter Animals, Inc. (FORSA) v. Mullen, 313 F. Supp. 2d 339, 344 (S.D.N.Y. 2004) (rejecting Occidental Petroleum-based argument that the First Amendment right to petition the Government for a redress of grievances only applies to petitions to one's own government); Coastal States, 694 F.2d at 1366; Coca-Cola Co., 1998 U.S. Dist. LEXIS 23277 at *29-30.
19
In re Heddendorf, 263 F.2d at 888. Elimination of the ATS claims would obviate the need for prolonged inquiry (at summary judgment and trial) into lengthy and convoluted international accords and tribunal decisions, as well as for expert discovery and testimony on international norms, which the current discovery plan contemplates. It would also obviate the need for transnational discovery into whether a widespread or systematic attack has been perpetrated by the Ugandan government against its civilian population. Finally, it would eliminate SMUGs aiding and abetting claim against Lively, which would eliminate the unsettling foreign policy implications attendant to this Courts indictment of a foreign sovereign for crimes against humanity. 11 For these reasons, ATS jurisdictional questions are routinely granted immediate appellate review, either by interlocutory appeal or, failing certification, by mandamus. Balintulo, 2013 WL 4437057 at *5 (because ATS suits often create particular risks of adverse foreign policy consequences, and the ATS places federal judges in an unusual lawmaking role as creators of federal common law, a ruling that raises substantial questions of judicial power under the ATS cannot be insulated from immediate review simply because a lower court refuses to certify the order for appeal); Mamani, 654 F.3d at 1150-52, 1156 (accepting interlocutory appeal to determine whether an asserted crime against humanity was sufficiently defined and universally accepted); Mwani, 2013 WL 2325166 at *4 (issuing sua sponte certification for interlocutory appeal of order denying motion to dismiss ATS claims). Pleading secondary state law claims does not shield a decision on ATS jurisdiction from interlocutory appeal. Mamani, 654 F.3d at 1150-51, n.1 (district court certified, and Eleventh Circuit accepted, ATS jurisdictional issue for interlocutory appeal, notwithstanding plaintiffs assertion of state law claims that were not at issue in this limited interlocutory appeal).
11
There can be no secondary liability for aiding and abetting an international law violation without finding that the principal violated international law. Presbyterian Church of Sudan v. Talisman Energy, Inc., 453 F. Supp. 2d 633, 668 (S.D.N.Y. 2006) aff'd, 582 F.3d 244 (2d Cir. 2009). Accordingly, SMUGs aiding and abetting claim against Lively could not succeed unless this Court ultimately credits SMUGs allegations that sitting members of the Ugandan Parliament and other members of the highest levels of the Ugandan government have committed crimes against humanity.
20
CONCLUSION For the foregoing reasons, Defendants Motion to Amend and Certify a Non-Final Order for Interlocutory Appeal should be granted. Respectfully submitted, Philip D. Moran (MA Bar # 353920) 265 Essex Street, Suite 202 Salem, Massachusetts 01970 Tel: (978) 745-6085 Fax: (978) 741-2572 Email: philipmoranesq@aol.com /s/ Horatio G. Mihet________________ Mathew D. Staver Admitted Pro Hac Vice Stephen M. Crampton Admitted Pro Hac Vice Horatio G. Mihet Admitted Pro Hac Vice LIBERTY COUNSEL P.O. Box 540774 Orlando, FL 32854-0774 800-671-1776 Telephone 407-875-0770 Facsimile court@lc.org Attorneys for Defendant Scott Lively
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was filed electronically with the Court on September 6, 2013. Service will be effectuated by the Courts electronic notification system upon all counsel or parties of record. /s/ Horatio G. Mihet________________ Horatio G. Mihet Attorney for Defendant Scott Lively
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DEFENDANT SCOTT LIVELYS MOTION FOR RECONSIDERATION OF ORDER DENYING CERTIFICATION FOR INTERLOCUTORY APPEAL Pursuant to this Courts inherent power to revise and amend non-final orders at any time prior to final judgment, Defendant Scott Lively respectfully moves the Court to reconsider its Order Denying Certification for Interlocutory Appeal (dkt. 71) of the Order Denying Livelys Motion to Dismiss. As shown in the Memorandum in Support filed concurrently herewith, Sexual Minorities Ugandas Opposition (dkt. 69) to Livelys Motion to Certify Non-Final Order for Interlocutory Appeal (dkt. 64) rests on six (6) demonstrably flawed, deceptive and clearly erroneous premises. To the extent the Courts Order Denying Certification relied upon any one of these premises, Lively respectfully requests that the Court reconsider its decision.
Case: 13-2503
Respectfully submitted, Philip D. Moran (MA Bar # 353920) 265 Essex Street, Suite 202 Salem, Massachusetts 01970 Tel: (978) 745-6085 Fax: (978) 741-2572 Email: philipmoranesq@aol.com /s/ Horatio G. Mihet________________ Mathew D. Staver Admitted Pro Hac Vice Stephen M. Crampton Admitted Pro Hac Vice Horatio G. Mihet Admitted Pro Hac Vice LIBERTY COUNSEL P.O. Box 540774 Orlando, FL 32854-0774 800-671-1776 Telephone 407-875-0770 Facsimile court@lc.org Attorneys for Defendant Scott Lively
CERTIFICATE OF CONFERRAL Pursuant to L.R. D. Mass. 7.1(a)(2), I HEREBY CERTIFY that I attempted to confer in good faith with counsel for Plaintiff, but was unable to reach counsel timely. /s/ Horatio G. Mihet________________ Horatio G. Mihet Attorney for Defendant Scott Lively
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT SCOTT LIVELYS MOTION TO RECONSIDER ORDER DENYING CERTIFICATION FOR INTERLOCUTORY APPEAL Sexual Minorities Ugandas Opposition (dkt. 69) to Scott Livelys Motion to Certify NonFinal Order for Interlocutory Appeal (dkt. 64) rests on six (6) demonstrably flawed, deceptive and clearly erroneous premises. To the extent the Courts Order Denying Certification (dkt. 71) relied upon any one of these premises, the Court should reconsider its decision pursuant to its inherent authority. Iglesias v. Mutual Life Ins. Co. of N.Y., 918 F. Supp. 31, 33 (D.P.R. 1996) ("Prior to a final judgment being entered, courts have the inherent authority to reconsider rulings issued throughout the proceedings"). 1) Kiobels Extraterritorial Limitation Upon the Alien Tort Statute Presents a Threshold Question of Subject-Matter Jurisdiction, which is a Pure Question of Law, Not a Factual Merits Inquiry.
SMUG does not dispute Livelys contention that questions of subject matter jurisdiction are quintessentially appropriate for interlocutory review. Indeed, SMUG apparently concedes this point, and attempts to counter it right up front with the disingenuous argument that Kiobels extraterritorial limitation is a factual merits inquiry, rather than a threshold jurisdictional question. (Dkt. 69 at 4). The deception in SMUGs argument is that it conflates the extraterritorial analysis for a statute that regulates conduct, which is indeed a merits inquiry, Morrison v. Nat'l Australia
Bank Ltd., 130 S. Ct. 2869, 2877 (2010), with the extraterritorial limitation of a statute that only confers subject matter jurisdiction, which remains a threshold question of jurisdiction. Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1664 (2013). SMUG relies on Morrison (dkt. 69 at 4), which involved a statute (the Securities Exchange Act) that regulated conduct (securities fraud). 130 S. Ct. at 2875. The Supreme Court in Kiobel acknowledged that Morrison held that the question of extraterritorial application was a merits question, not a question of jurisdiction, but, in the very same breath, the Kiobel Court continued: The ATS, on the other hand, is strictly jurisdictional. It does not directly regulate conduct or afford relief. Kiobel, 133 S. Ct. at 1664 (emphasis added) (internal quotes and citations omitted). Unlike SMUG, post-Kiobel courts have universally understood this critical distinction. In Jian Zhang v. Baidu.com Inc., 85 Fed. R. Serv. 3d 1140, 2013 WL 2458834 (S.D.N.Y. June 7, 2013), the court reiterated the difference between a merits and jurisdictional analysis: In Kiobel, the Supreme Court held that the Alien Tort Statute (the ATS) does not grant federal courts jurisdiction over claims relating to conduct occurring outside the United States. But its decision was premised on the fact that the ATS is strictly jurisdictional, and does not directly regulate conduct or afford relief. Indeed, the Court expressly reaffirmed that for statutes that do regulate conduct or afford reliefas the statutes upon which Plaintiffs rely in this case do,the question of extraterritorial application is a merits question, not a question of jurisdiction In light of that, Baidu's argument about extraterritoriality goes to the merits, not this Court's jurisdiction, and is premature. Id. at * 5 (bold emphasis added; italics in original) (internal citations omitted). That SMUG cites no ATS cases, and certainly no post-Kiobel ATS cases, to support its merits inquiry argument is not at all surprising, because every court construing the ATS extraterritorial limits under Kiobel has done so explicitly in terms of subject-matter jurisdiction. 1
1
The authorities are too numerous to list exhaustively. See, e.g., Muntslag v. D'Ieteren, S.A., 12-CV-07038 TPG, 2013 WL 2150686, *1-2 (S.D.N.Y. May 17, 2013) ([t]he [Supreme C]ourt held [in Kiobel] that the ATS does not provide the federal courts of the United States with subject matter jurisdiction over torts that occur outside of the United States) (emphasis added) (dismissing ATS claims for lack of subject matter jurisdiction); Ahmed-Al-Khalifa v. Queen Elizabeth II, 5:13-CV-103-RS-CJK, 2013 WL 2242459, *1 (N.D. Fla. May 21, 2013) ([i]n light of Kiobel, the ATS cannot confer subject-matter jurisdiction onto plaintiff's claims because the violations at issue all occurred outside of the United States) (emphasis added) (dismissing ATS claims for lack of subject matter jurisdiction); Mohammadi v. Islamic Republic of Iran,
Accordingly, it is a grievous error to transmute a crucial jurisdictional inquiry into a factual merits inquiry. Kiobels impact on SMUGs ATS claims remains a threshold jurisdictional question, a question of law that goes to the very power of this Court to hear this case. In re Heddendorf, 263 F.2d 887, 889 (1st Cir. 1959) (denial of motion to dismiss for lack of subject matter jurisdiction presents question of law appropriate for interlocutory appeal); United States v. Lahey Clinic Hosp., Inc., 399 F.3d 1, 7 (1st Cir. 2005) (same). 2) Kiobels Extraterritorial Limitation Upon the Alien Tort Statute is a Sufficiently Pure Question of Law to Warrant Interlocutory Appeal.
Compounding its first error, SMUG next contends that no interlocutory appeals are possible after Kiobel, because the application of a legal standard is never a pure question of law. (Dkt. 69 at 10-14). This is just plain wrong. Decisions holding that the application of a legal standard is a controlling question of law within the meaning of section 1292(b) are numerous. In re Text Messaging Antitrust Litig., 630 F.3d 622, 626 (7th Cir. 2010) (POSNER, J.) (emphasis added) (collecting cases from six circuits). In Text Messaging, the Seventh Circuit accepted an
CIV.A. 09-1289 BAH, 2013 WL 2370594, *15 (D.D.C. May 31, 2013) ([a]s a result [of Kiobel], the Court does not have subject-matter jurisdiction to hear such claims, and they must be dismissed) (emphasis added) (vacating default judgment and dismissing ATS claims for lack of subject matter jurisdiction); Ahmed-Al-Khalifa v. Salvation Army, 3:13CV289-WS, 2013 WL 2432947, *3 (N.D. Fla. June 3, 2013) ([i]n light of Kiobel, the ATS cannot confer subject matter jurisdiction upon Plaintiff's claims) (emphasis added) (dismissing ATS claims for lack of subject matter jurisdiction); Giraldo v. Drummond Co., Inc., 2:09CV-1041-RDP, 2013 WL 3873960, *8, n.6 (N.D. Ala. July 25, 2013) (Plaintiffs can no more contend that approval in the United States of conduct committed abroad provides a basis for jurisdiction [under the ATS] than could the plaintiffs in Morrison contend that fraudulent acts in the United States establish jurisdiction when the focus of the claimpurchases and sales of securitiesoccurred entirely abroad) (emphasis added); Al Shimari v. CACI Int'l, Inc., 1:08-CV-827 GBL/JFA, 2013 WL 3229720, *1 (E.D. Va. June 25, 2013) (the Court holds that it lacks ATS jurisdiction over Plaintiffs' claims the Court cannot apply the ATS extraterritorially to extend jurisdiction over Plaintiffs' claims. Kiobel precludes such a result. Therefore, Plaintiffs' claims under the ATS are dismissed for want of jurisdiction.) (emphasis added); Ahmed-Al-Khalifa v. Obama, 1:13-CV-49-MW/GRJ, 2013 WL 3797287 (N.D. Fla. July 19, 2013) ([i]n light of Kiobel, the ATS cannot confer subject-matter jurisdiction onto Plaintiff's claims) (emphasis added) (dismissing ATS claims for lack of subject matter jurisdiction); Mwani v. Laden, CIV.A. 99-125 JMF, 2013 WL 2325166, *2, 5 (D.D.C. May 29, 2013) (I requested briefing from the plaintiffs regarding whether or not subject matter jurisdiction remained over their claims in light of Kiobel's holdings I find that there is subject matter jurisdiction over this case under the ATS, but that this finding presents a controlling question of law as to which there may be a substantial difference of opinion, such that this decision should be immediately appealed to the Court of Appeals under 28 U.S.C. 1292) (emphasis added).
interlocutory appeal to review the district courts application of the pleading standard announced in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) to the particular facts alleged in that case. Text Messaging, 630 F.3d at 624-25. While routine applications of well-settled legal standards to facts alleged in a complaint are not appropriate for interlocutory appeal, where the legal standard is recent and its scope unsettled certification of interlocutory review is proper. Id. at 626 (emphasis added). The Seventh Circuit thus accepted review, even though it ultimately concluded that the trial courts application of Twombly was correct, and the complaint at issue pled sufficient facts to survive dismissal. Id. at 629. Notably, the First Circuit has cited with approval this particular aspect of Text Messaging. See Evergreen Partnering Grp., Inc. v. Pactiv Corp., 720 F.3d 33, 44 (1st Cir. 2013) (noting that the Text Messaging court certif[ied] for interlocutory appeal the question of an antitrust complaint's adequacy because while the Seventh Circuit had issued dozens of decisions concerning the application of Twombly, the contours of the Supreme Court's ruling, and particularly its application in the present context, remain unclear) (emphasis added) (internal quotes omitted). Whatever SMUG might say about the Supreme Courts decision in Kiobel, it cannot credibly argue that its legal standards are not recent, nor that its scope and contours are well settled. To the extent Kiobels scope and contours are well-settled, it is only because every court that has applied it has concluded that neither the U.S. citizenship of a defendant, nor his alleged management or aiding and abetting of a foreign tort from the U.S. are sufficient to trigger ATS jurisdiction. Moreover, try as it might, SMUG cannot transform the controlling questions of law presented here into fact-intensive inquiries that might preclude interlocutory appeal. Whether Kiobel permits ATS jurisdiction over a U.S. citizen, by virtue of either his citizenship or alleged aiding and abetting from the U.S. of crimes on foreign lands, can be decided as a matter of law, without the need for discovery or an extensive review of facts. Indeed, post-Kiobel courts have done just that. See, e.g., Balintulo v. Daimler AG, 09-2778-CV L, 2013 WL 4437057, *7, n.24, *9 (2d 4
Cir. Aug. 21, 2013) (concluding as a matter of law that Kiobel plainly bars jurisdiction over ATS claims against U.S. citizens who allegedly took affirmative steps in this country to aid and abet international law violations abroad) (emphasis added). Here, Lively would not be asking the First Circuit to review this Courts determination of any facts. Instead, Lively would ask the First Circuit to determine whether, as a matter of law, Kiobel allows the exercise of subject matter jurisdiction over a U.S. citizen who allegedly managed or assisted or encouraged from the United States other actors to violate international law on foreign lands. See Text Messaging, 630 F.3d at 625 (granting permission for immediate appeal because [t]he interlocutory appeal that we are asked to authorize in this case does not seek to overturn any findings of fact). SMUGs own authorities also refute its contention. SMUGs reliance on United Air Lines, Inc. v. Gregory, 716 F. Supp. 2d 79, 91 (D. Mass. 2010), (dkt. 69 at 4), is quite odd, because there the court actually rejected the very argument SMUG advances here. To defeat interlocutory certification, plaintiff in United Air Lines argued that the federal preemption defense at issue requires an inherently factual analysis and the application of First Circuit precedent to a particular set of facts. 716 F. Supp. 2d at 91. The court rejected this argument, and concluded that the preemption question was sufficiently controlling and sufficiently legal in nature to warrant certification, even though it required analysis of the relatedness and significant effects of the specific complaint at issue to and on the federal regulation in question. Id. The court ultimately denied certification, but on the entirely different ground that there were no other courts disagreeing with the decision sought to be reviewed (id. at 92), which is certainly not the case here. Similarly, SMUG relies heavily upon Dahl v. Bain Capital Partners, LLC, 597 F. Supp. 2d 211, 213 (D. Mass. 2009). (Dkt. 69 at 9, 12, 14). But in Dahl, the court denied certification because it was absolutely certain that the complaint at issue pled sufficient facts to meet Twomblys plausibility standard, and concluded that no court could disagree with its holding on that particular set of facts. 597 F. Supp. 2d at 213. The court did not hold that a difference of opinion could never be possible on Twomblys application in other instances, as to other complaints. Id. 5
SMUGs contention that post-Kiobel certification of extraterritorial questions would never be proper defies the sua sponte certification in Mwani v. Bin Laden, CIV.A. 99-125 JMF, 2013 WL 2325166 (D.D.C. May 29, 2013). SMUG tries to wish away the Mwani certification on the ground that it was the first opinion interpreting the Kiobel decision. (Dkt. 69 at 14, n.5). However, just because other courts have since then also interpreted Kiobel is no reason to deny certification, particularly since all of those courts have disagreed with this Courts extension of Kiobel. Indeed, the subsequent interpretations of Kiobel are the very reason why this Court should grant certification, so that the difference of opinion on this pivotal jurisdictional question can be resolved. Finally, SMUG only makes its pure question of law argument against the extraterritorial issue, and not any of the other controlling questions identified by Lively (e.g., universality and free speech). (Dkt. 69 at 10-14). The presence of even one controlling question as to which there is substantial ground for difference of opinion is sufficient for certification of an interlocutory appeal. 28 U.S.C. 1292(b). 3) SMUG Misrepresents the Holding and Import of Balintulo.
As shown by Lively, the Second Circuit has recently held that the clear holding of the Supreme Courts decision in Kiobel plainly bars ATS subject-matter jurisdiction as a matter of law for international law violations outside the United States, even where U.S. citizens are alleged to have taken affirmative steps in this country to aid and abet those violations. (Dkt. 65 at 6-7). SMUG attempts to maneuver around the clear holding and import of Balintulo in two ways, neither of which is effective. First, SMUG seeks to relegate Balintulos central holding to mere dicta because the court had denied mandamus. (Dkt. 69, at 12, n.2). But SMUG ignores the fact that the Second Circuit concluded it had appellate jurisdiction within the context of a mandamus petition to identify the clear holding of the Supreme Court's decision in Kiobel and explain why it plainly bars the plaintiffs' claims as a matter of law. Balintulo, 2013 WL 4437057 at *6, n.21. SMUG also ignores why the Second Circuit denied mandamus: defendants mandamus petition was filed before Kiobel 6
was decided, and thus the Second Circuit afforded the district court the opportunity to dismiss the action as a matter of law pursuant to Kiobel. Id. at *9. The Second Circuit left nothing for the district court to do, other than to grant judgment on the pleadings for the defendants, and made unmistakable its intention to resort to mandamus relief if the action was not dismissed. Id. Thus, the Second Circuits interpretation of Kiobel to preclude ATS jurisdiction over claims that U.S. citizens took affirmative steps in this country to aid and abet international law violations abroad is not mere dicta, but its central holding. Second, SMUG contends that Balintulo is somehow distinguishable because there, the complaint did not tie [the U.S. citizens domestic conduct] to the relevant human rights violations abroad. (Dkt. 69 at 9). While SMUG is absolutely correct that the requisite connection between domestic conduct and foreign torts was found wanting in Balintulo, this was not for lack of trying. The Balintulo plaintiffs alleged that Ford, Daimler and IBM all of them U.S. citizens had taken affirmative steps in this country to aid and abet crimes against humanity in South Africa. Balintulo, 2013 WL 4437057 at *8. Plaintiffs specifically alleged that these U.S. citizens manufactured products in the U.S., expressly at the request of the foreign perpetrators of crimes against humanity, and with the knowledge and intent that those products would be used in the commission of those crimes on foreign soil. Id. at *2-3. Plaintiffs also alleged that the U.S. citizens provided technical and logistical support from the United States to the international law violators in South Africa. Id. It was these allegations that the Second Circuit found insufficient to trigger ATS jurisdiction as a matter of law, since the focus and place of the alleged crimes against humanity themselves was outside of the United States. Id. at *7, n.24, *9 (emphasis added). In sum, Balintulos holding that, as a matter of law, neither the U.S. citizenship of the defendants, nor their alleged aiding and abetting from the United States of crimes against humanity on foreign soil, is sufficient to confer subject-matter jurisdiction under the ATS, demonstrates that there is substantial ground for difference of opinion on this controlling question of law. Certification is therefore warranted. 7
4)
SMUG Misrepresents the Jurisdictional Requirement of Universally Accepted and Clearly Defined International Norms.
SMUG continues to rely upon the Rome Statute to establish the existence and content of a supposed international norm against persecution on sexual orientation and transgender grounds. (Dkt. 69 at 18-19). SMUG cites two cases for the proposition that an international treaty can supply the existence and terms of such norms for ATS claims, even if that treaty was expressly rejected by the United States. (Id.) The only thing this accomplishes, however, is to highlight the existence of substantial grounds for difference of opinion on this controlling question of law, since an even greater number of authorities have unequivocally rejected this proposition generally, and the Rome Statute specifically. (See dkt. 65 at 16). 2 SMUG then tries to supplement the Rome Statues definition of persecution solely with decisions of a regional tribunal, the International Criminal Tribunal for the Former Yugoslavia (ICTY). (Dkt. 69 at 16-17). This, in and of itself, triggers yet another pure question of controlling law as to which there is substantial ground for difference of opinion, because regional tribunals are not empowered to create binding norms of customary international law. Flores v. S. Peru Copper Corp., 414 F.3d 233, 263-64 (2d Cir. 2003) (the international tribunal decisions cited by plaintiffs are not primary sources of customary international law). More importantly, SMUG still cannot produce a single international treaty (whether binding on the United States or not) that specifically prohibits the denial of fundamental rights (i.e., persecution) based upon sexual orientation or transgender status, nor a single decision of a regional international tribunal that has actually imposed liability for such deprivation of rights. The savings-clause theory which SMUG advances here could just as easily be employed to find a
SMUG quibbles with Livelys reading of Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), on this point (dkt. 69 at 13, n.10), but the Supreme Courts holding there is unmistakably clear. After holding that international norms must be specific, universal and obligatory to be actionable under the ATS, the Supreme Court in Sosa concluded that two well-known international agreements , despite their moral authority, have little utility under the standard set out in this opinion, because they were not binding upon the United States. 542 U.S. at 734-35 (emphasis added). The Supreme Court thus did not accept those unratified agreements, either as binding sources of international law, or as evidence of customary international law. Id.
universal and clearly defined international norm against the prohibition of polygamy. That is, no international accords or tribunals have ever prohibited the denial of fundamental rights to polygamists, but, since the list of impermissible discriminatory grounds is open-ended and does not exclude polygamists, they too are a protected class under SMUGs version of international law. As such, any nation that outlaws the fundamental rights to marry, to live according to ones own conscience, and to promote the benefits of polygamy, is engaged in a widespread or systematic attack against a civilian population, and it and the co-conspirators who aid and abet the passage of its polygamy-phobic laws are guilty of the crime against humanity of persecution. However, no one doubts, or there is at least substantial ground for difference of opinion, that a proposed international norm against the deprivation of fundamental rights to (i.e., the persecution of) polygamists would not meet the clearly defined and universally accepted standard under Sosa. This is why there is substantial ground for difference of opinion as to whether this Court can be the first to recognize, within the context of an ATS claim, the actual existence of a universal and clearly defined norm against persecution based upon sexual orientation or transgender status. SMUG undoubtedly understands this problem, and has no choice but to retreat to its emotive argument that the failure of some nations to recognize sexual orientation and transgender identity as protected classes should not justify the continued absence of these classes from international norms. (Dkt. 69 at 21). SMUG, however, cannot dispute its own statistics which demonstrate that some nations in this case does not mean a handful of rogue states, but rather fully half or more of the nations on earth. (See dkt. 65 at 18-19 and n.9). SMUG also says nothing of the Supreme Courts admonishment in Sosa that federal courts lack jurisdiction to recognize a norm that is far from full realization, no matter how just, fair or necessary such recognition might seem. Sosa, 542 U.S. at 738 & n.29 (emphasis added). SMUGs silence on this point speaks volumes.
5)
SMUG Intentionally Ignores the Real First Amendment Issue at Hand.
SMUG continues to vigorously attack a defenseless strawman, and devotes its entire First Amendment argument to demonstrating what no one disputes that speech integral to the commission of a crime is not protected. (Dkt. 69 at 21-24). In so doing, SMUG says absolutely nothing about the real question at issue here: is there substantial ground for difference of opinion that Livelys U.S. conduct found by this Court in SMUGs Amended Complaint vilifying homosexuals and encouraging and assisting legislatures and citizens to enact laws restricting homosexual rights (Order Denying Motion to Dismiss, dkt. 59 at 34-35) is itself criminal? SMUG thus says nothing about the authorities that hold such conduct is not criminal, but protected as a matter of law. (See dkt. 65 at 19-20). To the extent there is no difference of opinion on this question, it is only because no court has ever found such conduct to be unlawful. That SMUG now admits it is indeed attempting to criminalize such conduct in the United States (dkt. 69 at 21, n.12) is reason enough to pause and give the First Circuit an opportunity to consider this issue. 6) SMUG Does Not Deny that it Intends to Pursue Transnational Discovery Against a Sovereign Government and its Officials.
Through the Declaration of its counsel, SMUG now claims that its recollection of the parties discovery conference is vastly different from Livelys. (Dkt. 69 at 19-20). Attorney Spees Declaration, however, is much more revealing in what it does not say. SMUG does not deny that it has every intention to seek discovery in Uganda from sitting members of the sovereign Ugandan government. (Dkt. 69-1 at 1-2). This surprises no one, because establishing the liability of the alleged principal actors the Ugandan Parliament and current and former heads of Uganda government agencies for crimes against humanity is a key element of SMUGs aiding and abetting claim against Lively (dkt. 65 at 22 & n.11), another contention that SMUG does not dispute. Thus, the Court can be certain that, once it re-opens the doors of discovery, SMUG will use this Courts imprimatur to pursue discovery against a foreign sovereign. The discovery plan drafted by SMUG with no input (yet) from Lively confirms this intention. (Dkt. 69-2, pp. 4-5, I(f)) 10
(non-party deposition[s] may commence immediately, will involve witnesses residing abroad and require trips that counsel must make outside the United States); (id. at p. 5) (providing that discovery may be extended depending on issues that arise in seeking discovery, either in the form of documents or witnesses, in Uganda). It is precisely this element of ATS claims that makes them peculiarly well suited for immediate appellate review, either through interlocutory certification or mandamus. Balintulo, 2013 WL 4437057 at *5 (because ATS suits often create particular risks of adverse foreign policy consequences a ruling that raises substantial questions of judicial power under the ATS cannot be insulated from immediate review simply because a lower court refuses to certify the order for appeal) (emphasis added); Mamani v. Berzain, 654 F.3d 1148, 1152 (11th Cir. 2011) (granting interlocutory appeal because [w]e know and worry about the foreign policy implications of civil actions in federal courts against the leaders (even the former ones) of nations). SMUG says nothing about the obvious foreign policy implications of burdening a foreign sovereign with discovery, and of having this Court find that the foreign sovereign has committed crimes against humanity. (Dkt. 69 at 18). Instead, SMUG claims that it will be prejudiced by the delay of an immediate appeal. (Id.) SMUG cites a general risk of lost evidence and witnesses attendant in any litigation, without any specific threat or other indication that the risk will materialize in this case. (Id.) It is SMUG who has chosen to bring in this Court the kind of case that routinely takes many years, often over a decade, to resolve. 3 The inherent complexity and length of ATS cases has never been an impediment to immediate appellate review, given all of the other serious considerations at issue. See e.g., Kiobel, 133 S. Ct. at 1663 (noting that the decade-old case
See e.g., Timeline, Kiobel v. Royal Dutch Petroleum Co. (http://ccrjustice.org/ourcases/currentcases/kiobel, last visited September 23, 2013) (indicating that the Kiobel litigation was filed in September 2002, almost 11 years prior to being decided by the Supreme Court); Sosa, 542 U.S. at 698 (noting that, 11 years prior to the date of the opinion, "[i]n 1993 . . . Alvarez began the civil action before us here"); Balintulo, WL 4437057 at *1) ([t]he plaintiffs brought these suits over ten years ago in federal court under the ATS) (emphasis added); Al Shimari v. CACI Intl, Inc., 1:08-CV-827 GBL/JFA, 2013 WL 3229720, *2 (E.D. Va. June 25, 2013) ("[t]he pendency of this litigation approaches its fifth anniversary") (emphasis added).
11
arrived at the Supreme Court on interlocutory appeal, after denial of defendants motion to dismiss in the district court). Finally, even as it claims prejudice from the delay of an immediate appeal, SMUG attempts to justify its own delay in bringing this suit by claiming that it was the victim of severe repression [and thus unable] to advocate on [its] own behalf. (Dkt. 69 at 18-19, n.15). This contention flies in the face of SMUGs admitted ability to vigorously advocate on its own behalf through successful litigation at all levels of the Ugandan judiciary, including its 2008 victory at the Ugandan High Court in the case resulting from the alleged invasion of Victor Mukasas home (Amd. Compl, dkt. 27, 34), and its 2011 victory at the Ugandan High Court in the case against Ugandan tabloids. (Id. at 221). SMUG waited another four years and one year, respectively, after those victories to bring this action here. During (and before) that delay, SMUGs principals traveled routinely and freely outside of Uganda, but only to deliver speeches about, and to receive international awards for, their supposedly impossible advocacy in Uganda, not to file this suit. 4
For example (all websites were last visited on September 23, 2013): (1) in 2007, Victor Mukasa, SMUGs co-founder and president emeritus took a job in the South African office of the International Gay and Lesbian Human Rights Commission, headquartered in New York (http://www.iglhrc.org/content/iglhrc-prominentugandan-activist-victor-juliet-mukasa-joins-staff; and http://protectionline.org/2007/10/26/victor-mukasaprominent-ugandan-activist-joins-iglhrc-staff/); (2) in 2007, Frank Mugisha, SMUGs Executive Director, traveled to South Africa to participate in the arch dialogue (http://old.rafto.no /publish_files/RaftoPrize2011-CV-FrankMugisha.pdf); (3) in 2009, Mr. Mugisha traveled to London, England, to speak at the House of Parliament (id.); (4) in 2009, Mr. Mukasa traveled to New York to speak at the United Nations (http://www.iglhrc.org/content/victor-mukasa-un-speaking-grave-human-rightsviolations-against-lgbt-people); (5) in 2010, Pepe Julian Onziema, SMUGs Programme Coordinator, traveled to the Hague, Netherlands, to deliver a keynote speech at the African Conference (http://africanconference.weebly.com/general-information.html; and http://africanconference.weebly.com /key-note-speakers.html); (6) in January 2011, more than a year before SMUG filed this suit, Mr. Mugisha traveled to Philadelphia to speak at the LGBT Community Center, and to further strengthen ties between U.S. and Uganda (http://phillygaycalendar.com/pages/calendar.php?id=11517); (7) later in 2011, Mr. Mugisha traveled to Washington, D.C. to receive the 2011 Robert F. Kennedy Human Rights Award (http://rfkcenter.org/media-coverage-of-2011-rfk-human-rights-award-ceremony?lang=en); and (8) also in 2011, Mr. Mugisha traveled to Bergen, Norway, to receive (on behalf of SMUG) the 2011 Rafto Prize (http://humanrightshouse.org/Articles/16999.html), which was awarded to SMUG because it has successfully used the legal system to fight harassment and violence from government and private actors (http://www.rafto.no/article/382/Sexual_Minorities_Uganda_SMUG_Frank_Mugisha) (emphasis added).
12
Compared to the typical ATS case, this litigation is still in its infancy. A moderate pause while the parties seek the First Circuits guidance on the paramount issues at hand will prejudice no one. CONCLUSION For the foregoing reasons, the Court should reconsider its Denial of Certification for Interlocutory Appeal (dkt. 71) of its Order Denying Livelys Motion to Dismiss. Respectfully submitted, Philip D. Moran (MA Bar # 353920) 265 Essex Street, Suite 202 Salem, Massachusetts 01970 Tel: (978) 745-6085 Fax: (978) 741-2572 Email: philipmoranesq@aol.com /s/ Horatio G. Mihet________________ Mathew D. Staver Admitted Pro Hac Vice Stephen M. Crampton Admitted Pro Hac Vice Horatio G. Mihet Admitted Pro Hac Vice LIBERTY COUNSEL P.O. Box 540774 Orlando, FL 32854-0774 800-671-1776 Telephone 407-875-0770 Facsimile court@lc.org Attorneys for Defendant Scott Lively
13
Case: 13-2503
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS SPRINGFIELD DIVISION SEXUAL MINORITIES UGANDA Plaintiff, v. SCOTT LIVELY, individually and as President of Abiding Truth Ministries Defendant. ) ) ) ) ) ) ) ) ) )
Civil Action 3:12-CV-30051
JOINT REPORT REGARDING SCHEDULING AND DISCOVERY PLAN Pursuant to Fed. R. Civ. P. 26(f), Local Rule 16.1, and the Courts August 16, 2013 Order (dkt. 61) and October 17, 2013 Order (dkt. 76), undersigned counsel conferred via telephone on September 3, 2013 and October 24, 2013, and agreed to the discovery plan outlined below. Where the parties could not come to agreement, both parties positions are summarized.
I. Discovery The parties have developed a discovery plan that identifies the phases of discovery and the time the parties anticipate will be required to complete each phase. Defendant has engaged in good faith in the joint discovery planning required by the applicable civil and local rules and the courts orders, but does not waive any argument that discovery, generally or as contemplated below, is premature or otherwise improper at this time. The parties confirm the obligation to limit discovery as set forth in Fed. R. Civ. P. 26(b). The parties proposed schedule is as follows:
Case: 13-2503
a.
Initial disclosures under Fed. R. Civ. P. 26(a)(1) will be exchanged by December
1, 2013. Plaintiff contends that some information that will be exchanged in discovery, including in the initial disclosures, is confidential and its disclosure should be limited to counsel. The parties will attempt in good faith to agree upon the terms of a proposed protective order. In the event they cannot reach agreement, and a contested motion for entry of a protective order is filed and pending as of December 1, 2013, the parties initial disclosure deadline shall be postponed to 7 days after the motion is adjudicated. b. exchanged. c. The parties agree that each side will take no more than 10 depositions, provided Written discovery may be commenced 14 days after initial disclosures are
that a party shall be entitled to exceed this limitation in order to take the deposition of any person whose testimony an opposing party intends to introduce at trial, and who was not already deposed. It is understood that the parties must otherwise seek leave of the Court to take additional depositions. d. Depositions may commence after February 15, 2014, at mutually convenient dates
and times. The parties agree that each non-party deposition will be limited to one day of seven hours. In the event that a party may require more than seven hours for the deposition of another party, counsel will confer and attempt to reach an agreement before seeking leave of court. e. The parties agree that they will use reasonable efforts to arrange for depositions of
witnesses residing abroad to be scheduled proximate in time or by video conference to minimize the trips that counsel must make outside the United States. Absent leave of court or stipulation of parties, the parties shall only travel once to a foreign country for depositions or other discovery. A party desiring to take deposition or other discovery in a foreign country shall provide the other
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party with notice of its intent at least 60 days in advance, so that both parties may jointly schedule all of their discovery in that country at the same time. If unanticipated and extenuating circumstances arise that make a second trip to a foreign country necessary, the parties shall attempt in good faith to reach agreement, failing which they shall seek leave of court. f. To protect a foreign sovereign from undue burden and avoid adverse foreign
policy implications, Defendant proposes that the parties shall not seek or conduct compelled or involuntary discovery, including depositions, of (1) the president or vice-president of Uganda; (2) any sitting member of the Ugandan Parliament; and (3) any current head of a Ugandan government agency. Plaintiff objects to this proposal as unnecessary, premature, and improper. g. Each party shall deliver to the other party bates-stamped copies of all documents
produced to one party by any non-party in response to a Rule 45 subpoena, within 10 days after receiving the production, unless the non-party produces to both parties simultaneously. h. i. All fact discovery will be completed by October 1, 2014. Plaintiff will serve its experts reports upon Defendant, pursuant to Fed. R. Civ.
P. 26(a)(2), no later than October 31, 2014. j. Defendant will serve his rebuttal reports upon Plaintiff, pursuant to Fed. R. Civ.
P. 26(a)(2), no later than December 19, 2014. k. l. Depositions of the experts will be conducted by January 30, 2015. All expert discovery will be complete by January 30, 2015.
Notwithstanding the proposed schedule, the time period for discovery may need to be extended depending on issues that arise in seeking discovery, either in the form of documents or
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witnesses, in Uganda. The parties will keep the Court apprised of any unanticipated delays and will seek leave of the Court if additional time to complete discovery is necessary.
II. Changes to Discovery Limitations Imposed by Federal and Local Rules The parties jointly propose that Plaintiff and Defendant should be permitted to each serve 50 interrogatories on the other party. If a party serves more than 25 interrogatories at the same time, or within the same 30 day period, the parties shall work in good faith to agree to a reasonable modification of the response deadline(s), as may be necessary.
III. Privilege Issues a. Should either party assert a privilege or other protection of trial-preparation
material, the party making the assertion shall produce a log describing, pursuant to Fed. R. Civ. P. 26(b)(5)(A), the nature of the documents, communications, or tangible things not produced or disclosed, in a manner that, without revealing information itself privileged or protected, will enable the other party to assess the claim, and the basis for the assertion. b. The parties agree that any inadvertent disclosure or production of documents
protected by the attorney-client privilege or work-product protection will not constitute a waiver of either any available privilege or protection by the disclosing party.
IV. Dispositive Motions Dispositive motions will be filed by April 1, 2015. Responses are due by May 1, 2015. Replies are due by June 1, 2015.
Case: 13-2503
Dated: November 1, 2013
Respectfully submitted,
/s/Pamela C. Spees Pamela C. Spees, admitted pro hac vice Baher Azmy, admitted pro hac vice Jeena Shah, admitted pro hac vice Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 Tel. 212-614-6431 Fax 212-614-6499 pspees@ccrjustice.org Luke Ryan (MA Bar No. 664999) 100 Main Street, Third Floor Northampton, MA 01060 Tel. 413-586-4800 Fax 413-582-6419 lryan@strhlaw.com Attorneys for Plaintiff
/s/Horatio G. Mihet Horatio G. Mihet, admitted pro hac vice Mathew D. Staver , admitted pro hac vice Liberty Counsel P.O. Box 540774 Orlando, FL 32854-0774 Tel. 800-671-1776 Fax 407-875-0770 court@lc.org Philip D. Moran (MA Bar No. 353920) 265 Essex Street, Suite 202 Salem, Massachusetts 01970 Tel. 978-745-6085 Fax 978-741-2572 philipmoranesq@aol.com Attorneys for Defendant
CERTIFICATE OF SERVICE I HEREBY CERTIFY that the foregoing was filed electronically, that it will be served electronically upon all parties of record who are registered CM/ECF participants via the NEF, and that paper copies will be sent to any parties indicated on the NEF as non-registered participants on November 1, 2013.
/s/Pamela Spees Pamela Spees Counsel for Plaintiff
Case: 13-2503
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
SEXUAL MINORITIES UGANDA, Plaintiff v. SCOTT LIVELY, individually and as President of Abiding Truth Ministries, Defendant
) ) ) ) ) ) ) ) )
Civil Action No. 12-30051-MAP
SCHEDULING ORDER November 6, 2013 NEIMAN, U.S.M.J. The following schedule was established at the scheduling conference this day: 1. 2. Defendant shall file his answer to the complaint by November 20, 2013. Any motion with regard to a proposed protective order shall be filed by November 22, 2013, with any opposition filed by December 4, 2013. 3. The parties shall complete their automatic disclosures by December 3, 2013. 4. 5. 6. 7. Written discovery may be served starting December 17, 2013. Non-expert depositions may commence starting February 18, 2014. All non-expert discovery shall be completed by October 1, 2014. Plaintiff shall designate and disclose information regarding its trial experts as required by FED. R. CIV. P. 26(a)(2) by October 31, 2014. 8. Defendant shall designate and disclose information regarding his rebuttal
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experts as required by FED. R. CIV. P. 26(a)(2) by December 15, 2014. 9. 10. All expert depositions shall be completed by January 30, 2015. Defendant shall file his summary judgment motion, if any, by March 2, 2015. 11. Plaintiffs opposition to Defendants motion, together with any crossmotion for summary judgment, shall be filed by March 23, 2015, to which Defendant may respond by April 13, 2015. 12. A hearing on any motions for summary judgment shall take place on May 6, 2015, at 2:00 p.m. before District Judge Michael A. Ponsor. The court hereby adopts the parameters set forth by the parties in paragraph I(c), (d), (e) and (g), II, and III(a) and (b). IT IS SO ORDERED. /s/ Kenneth P. Neiman KENNETH P. NEIMAN U.S. Magistrate Judge
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS SPRINGFIELD DIVISION
SEXUAL MINORITIES UGANDA Civil Action Plaintiff, 3:12-CV-30051 v. SCOTT LIVELY, individually and as President of Abiding Truth Ministries Defendant. _________________________________________ Leave to File Excess Pages Granted July 6, 2012
PLAINTIFFS MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS FIRST AMENDED COMPLAINT Pamela C. Spees Admitted Pro Hac Vice Baher Azmy Admitted Pro Hac Vice Jeena Shah Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 212-614-6431 - Phone 212-614-6499 - Fax pspees@ccrjustice.org Luke Ryan (Bar No. 664999) 100 Main Street, Third Floor Northampton, MA 01060 Tel. (413) 586-4800 Fax (413) 582-6419 lryan@strhlaw.com Attorneys for Plaintiff
decide whether sexual orientation would be included within the definition of gender). .Additionally, the legislative history indicates that the catchall provision of other grounds universally recognized in international law is to be understood as meaning widely recognized and not as requiring unanimity. Machtheld Boot and Christopher K. Hall, Persecution, in Commentary on the Rome Statute of the International Criminal Court: Observers Notes, Article by Article 150 (Otto Triffterer (Ed.)) (Nomos Verlagsgesellschaft, Baden-Baden 1999). Even while not unanimous, the prohibition of discrimination on the basis of sexual orientation and gender identity is certainly widely recognized e. Rapidly Growing Consensus Among States A number of countries have long recognized persecution on the basis of sexual orientation as grounds for granting asylum.29 The United Nations High Commission for Refugees has advised since 1991 that persons facing attack, inhuman treatment, or serious discrimination because of their homosexuality, and whose governments are unable or unwilling to protect them, should be recognized as refugees.30 Additionally, in recognition of the discriminatory nature of laws of criminalizing same-sex conduct, nearly two-thirds, or 113, of the worlds countries have moved to repeal such laws.31 Fifty-two countries prohibit
See Michael Carl Budd, Mistakes in Identity: Sexual Orientation and Credibility in the Asylum Process (Masters Thesis), The American University in Cairo (Dec. 2009), available at http://www.aucegypt.edu/GAPP/cmrs/Documents/MichaelCarlBudd_Thesis.pdf (Countries that regularly grant asylum due to a claim of persecution based on sexual orientation/gender identity, are Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Latvia, the Netherlands, New Zealand, Norway, South Africa, Spain, Thailand, the United Kingdom, and the United States). 30 United Nations High Commissioner for Refugees, The International Protection of Refugees: Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees, 20 Refugee Surv. Q. 77 (Oct. 2001). 31 Lucas Paoli Itaborahy, State-Sponsored Homophobia: A world survey of laws criminalising 42
29
discrimination based on sexual orientation in employment,32 nineteen prohibited discrimination in employment based on gender identity,33 and six countries have explicit constitutional prohibitions against discrimination based on sexual orientation.34 Incitement to hatred based on sexual orientation is prohibited in twenty-four countries.35 National courts have also begun to recognize sexual orientation as a prohibited ground of discrimination and strike down laws prohibiting same-sex intercourse.36
***
same-sex sexual acts between consenting adults, The International Lesbian, Gay, Bisexual, Trans and Intersex Association (2012), available at http://old.ilga.org/Statehomophobia/ILGA_State_Sponsored_Homophobia_2012.pdf.
32 33 34 35 36
Id. at 15-16. Id. at 16. Id. Id.
See, e.g., Egan v. Canada, [1995] 2 S.C.R. 513, 175 (Can.) (holding that sexual orientation is a prohibited ground for discrimination and that homosexuals, whether as individuals or couples, form an identifiable minority who have suffered and continue to suffer serious social, political and economic disadvantage); Vriend v. Alberta, [1998] 1 S.C.R. 493, 102 (Can.) ([C]oncealment of true identity ... must be harmful to personal confidence and selfesteem. Compounding that effect is the implicit message conveyed by the exclusion, that gays and lesbians, unlike other individuals, are not worthy of protection.); Natl Coal. for Gay & Lesbian Equal. v. Minister of Justice, 1998 (12) BCLR 1517 (CC) (S. Afr.), available at 1998 SACLR LEXIS 36 (holding the law prohibiting homosexual intercourse unconstitutional and that homosexuals as a coherent group are deserving of protection against discrimination); El Al Isr. Airlines Ltd. v. Danilowitz, [1994] Isr.S.C. 48(5) 749, 15-17 (Isr. Sup. Ct.), available at http://www.tau.ac.il/law/aeyalgross/Danilowitz.htm (prohibiting discrimination against homosexuals in the granting of employment benefits); Leung TC William Roy v Secretary for Justice, [2006] 4 H.K.L.R.D. 211 (CA) (H.C.) (Hong Kong) (prohibiting unjustified differential treatments based upon one's sexual orientation); Naz Foundation v. Govt. of NCT of Delhi, [2009] 160 Delhi Law Times 277 (Delhi H.C.) (India) (holding that treating consensual homosexual sex between adults as a crime is a violation of fundamental rights protected by Indias Constitution) (appeal pending in the Supreme Court). 43
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United States Court of Appeals

For the First Circuit
No. 13-2503 IN RE: SCOTT LIVELY, individually and as President of Abiding Truth Ministries Petitioner
CASE OPENING NOTICE Issued: December 6, 2013
A petition for a writ of mandamus was received and docketed today by the clerk of the court of appeals in compliance with 1st Cir. R. 21.0. If the court requires a response to the petition, it shall do so by order. An appearance form should be completed and returned immediately by any attorney who wishes to file pleadings in this court. 1st Cir. R. 12.0(a) and 46.0(a)(2). Petitioner must file an appearance form by December 20, 2013 in order for it to be deemed timely filed. Pro se parties are not required to file an appearance form. Any attorney who has not been admitted to practice before the First Circuit Court of Appeals must submit an application and fee for admission with the appearance form. 1st Cir. R. 46.0(a)(2). Dockets, opinions, rules, forms, attorney admission applications, the court calendar and general notices can be obtained from the courts website at www.ca1.uscourts.gov. Your attention is called specifically to the notice(s) listed below:
Notice to Counsel and Pro Se Litigants
If you wish to inquire about your case by telephone, please contact the case manager at the direct extension listed below.
Margaret Carter, Clerk
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT John Joseph Moakley United States Courthouse 1 Courthouse Way, Suite 2500 Boston, MA 02210
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Case Manager: Adam Sparrow - (617) 748-9060
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NOTICE OF ELECTRONIC AVAILABILITY OF CASE INFORMATION The First Circuit has implemented the Federal Judiciarys Case Management/Electronic Case Files System (CM/ECF) which permits documents to be filed electronically. In addition, most documents filed in paper are scanned and attached to the docket. In social security and immigration cases, members of the general public have remote electronic access through PACER only to opinions, orders, judgments or other dispositions of the court. Otherwise, public filings on the courts docket are remotely available to the general public through PACER. Accordingly, parties should not include in their public filings (including attachments or appendices) information that is too private or sensitive to be posted on the internet. Specifically, Fed. R. App. P. 25(a)(5), Fed. R. Bank. P. 9037, Fed. R. Civ. P. 5.2 and Fed. R. Cr. P. 49.1 require that parties not include, or partially redact where inclusion is necessary, the following personal data identifiers from documents filed with the court unless an exemption applies:
Social Security or Taxpayer Identification Numbers. If an individuals social security or taxpayer identification number must be included, only the last four digits of that number should be used. Names of Minor Children. If the involvement of a minor child must be mentioned, only the initials of that child should be used. Dates of Birth. If an individuals date of birth must be included, only the year should be used. Financial Account Numbers. If financial account numbers are relevant, only the last four digits of these numbers should be used. Home Addresses in Criminal Cases. If a home address must be included, only the city and state should be listed.
See also Rule 12 of this courts Administrative Order Regarding Case Management/Electronic Case Files System. If the caption of the case contains any of the personal data identifiers listed above, the parties should file a motion to amend caption to redact the identifier. Parties should exercise caution in including other sensitive personal data in their filings, such as personal identifying numbers, medical records, employment history, individual financial information, proprietary or trade secret information, information regarding an individuals cooperation with the government, information regarding the victim of any criminal activity, national security information, and sensitive security information as described in 49 U.S.C. 114.
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Attorneys are urged to share this notice with their clients so that an informed decision can be made about inclusion of sensitive information. The clerk will not review filings for redaction. Filers are advised that it is the experience of this court that failure to comply with redaction requirements is most apt to occur in attachments, addenda, or appendices, and, thus, special attention should be given to them. For further information, including a list of exemptions from the redaction requirement, see http://www.privacy.uscourts.gov/.
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Entry ID: 5785627

NOTICE TO COUNSEL REGARDING MANDATORY REGISTRATION AND TRAINING FOR ELECTRONIC FILING (CM/ECF) Beginning January 1, 2010, CM/ECF is mandatory for all attorneys filing in this court. Therefore, we strongly encourage all attorneys who practice in this court to register as an ECF Filer as soon as possible and become familiar with the system. Before you may file documents electronically in the CM/ECF system, you must complete the following steps.
Complete both of the mandatory Electronic Learning Modules (ELMs) located at www.ca1.uscourts.gov on the CM/ECF (Electronic Filing) page. The lessons provide a step-by-step overview of how to file various types of documents, as well as how to avoid common filing errors. Apply for admission if you are not a member of this courts bar. In order to register as an ECF Filer, attorneys must be admitted to the bar of this court. For information on attorney admission, go to the Forms & Instructions page on the First Circuits website at www.ca1.uscourts.gov. Register for a PACER account at http://www.pacer.psc.uscourts.gov if you or your law firm have not previously done so. A PACER account is required to view docket reports and electronically filed documents. Register with PACER for a First Circuit Appellate ECF Filer account at http://www.pacer.psc.uscourts.gov. You must register for an ECF Filer account with this court order to electronically file documents through the courts CM/ECF system. If you previously registered through PACER for electronic noticing in the First Circuit, and you are a member of the bar of the First Circuit Court of Appeals, you do not have to reregister for an appellate CM/ECF account. Review the Administrative Order Regarding CM/ECF (which sets forth rules governing electronic filing) and the CM/ECF Users Guide. Complete information about CM/ECF is available on the First Circuits website at www.ca1.uscourts.gov.
March 31, 2010
cc:
Case: 13-2503
Document: 00116621212
Page: 6
Entry ID: 5785627
Baher Azmy Stephen M. Crampton Robert M. Farrell Horatio Gabriel Mihet Michael A. Ponsor Luke S. Ryan Jeena D. Shah Pamela C. Spees Anita Leigh Staver Mathew D. Staver
Case: 13-2503
Document: 00116621213
Page: 1
Entry ID: 5785627

NOTICE TO ALL CM/ECF USERS REGARDING "NATIVE" PDF REQUIREMENT All documents filed electronically with the court must be submitted as "native" Portable Document ("PDF") files. See Rule 1 of the Administrative Order Regarding Case Management/Electronic Case Files System ("CM/ECF"). A native PDF file is created by electronically converting a word processing document to PDF using Adobe Acrobat or similar software. A scanned PDF file is created by putting a paper document through an optical scanner. Use a scanner ONLY if you do not have access to an electronic version of the document that would enable you to prepare a native PDF file. If you fail to file a document in the correct format, you will be asked to resubmit it. Instructions for converting Word or WordPerfect documents to PDF are available on the courts website at http://www.ca1.uscourts.gov/sites/ca1/files/WP_Conversion.pdf.

13-2503 Petition

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13-2503 Petition

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Case: 13-2503

Date Filed: 12/06/2013

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13-2503 NO. ________________ ________________________________________________________________

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MANDAMUS IS APPROPRIATE UNDER THE CIRCUMSTANCES .

CONCLUSION . CERTIFICATE OF SERVICE .

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8, 13 passim 23 22 6, 7 26 13, 17 13, 17 29 17 16 8, 11 12, 13

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11 7, 25, 28 7, 26-27 7, 15, 27-28 6, 7, 8 29

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defined and universally accepted international norm against persecution based

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13-2503 NO. ________________________________________________

13-2503 NO. ________________________________________________