Suing Americans under international law — in American courts
By Selwyn Duke
Imagine you go overseas and give a speech advocating a cause, only to come home and find you're being sued for "crimes against humanity." No, what you did wasn't illegal under American law or under the laws of the nation in which you expressed your words.
You're being sued under international law.
And here's the kicker: Your case will be adjudicated by an American court.
Foreign law in a U.S. court?
This is precisely what befell Massachusetts native Pastor Scott Lively after he gave some speeches critical of homosexuality in Uganda and elsewhere. The suit was filed on behalf of activist group Sexual Minorities Uganda (SMU) by an organization with the temerity to call itself the Center for Constitutional Rights (CCR) (emphasis added). The legal action is based on, wrote The New York Times in 2012, "the alien tort statute, which allows foreigners to sue in American courts in situations asserting the violation of international law." SMU claims that Lively incited "the persecution of gay men and lesbians in Uganda," wrote the Times.
Lively's speechmaking hit the radar screen because the Ugandan parliament recently passed a law broadening the criminalization of homosexual activity; moreover, the pastor has also spoken in Russia, whose new law against homosexual activism has figured prominently in the reportage on the Winter Olympics in Sochi.
Yet this isn't — or shouldn't be — about what Lively did or didn't say; it's not about the particular. It's about the principle:
American courts can adjudicate cases of American citizens sued under law (international law) that the people's representatives did not in any way enact. Thus, Americans can conceivably be punished under legislation that they had not even an indirect hand in creating.
This is adjudication without representation.
This is an issue because last August federal judge Michael A. Ponsor rejected a motion to dismiss the Lively case filed by the pastor's lawyers, instead allowing it to proceed to the discovery phase. This is despite the fact that, as activist group Mass Resistance reported, the judge "told the CCR lawyer that he is ‘struggling to see actionable behavior' in anything Lively did or said, and that he can't see that any of Lively's conduct that [sic] amounts to ‘persecution' or ‘conspiracy.'" Nonetheless, upon issuing his 79-page ruling, writes Mass Resistance, the judge accepted "all of the points raised by the [George] Soros-backed plaintiffs" and denied "all of the points raised by Lively's lawyers."
Again, though, this isn't about the facts of any particular case. It's about using extra-constitutional means to trump Americans' constitutional rights; it's about seeking to use international laws and philosophy regarding "hate speech" to circumvent Americans' First Amendment right to free speech.
Even staunch faux-marriage proponent and committed liberal Jonathan Rauch recognizes the danger. As he wrote in a Feb. 3 Washington Post editorial, "On the facts as I read them, the plaintiff's theory would leave no clear line between speaking one's mind and engaging in a criminal conspiracy, at least if speaking one's mind could be plausibly connected to some bad outcome. That theory seems very easy to abuse."
That's the understatement of the year. Most any opinion could perhaps be connected to a bad outcome, and a multitude of opinions plausibly so. Did Barack Obama's post-Trayvon Martin shooting statement, "If I had a son, he'd look like Trayvon" help spark the revenge attacks on whites that occurred after the event? Could Ted Kaczynski (the Unabomber) and other eco-terrorists have been influenced by the rhetoric of Al Gore and other environmentalists? And what about the constant racial grievance-mongering of Jesse Jackson and Al Sharpton? The fact is this: everyone who does evil was influenced by someone.
Moreover, even the expression of the most highly esteemed ideas can lead to negative outcomes (which, if the ideas are actually valid, are generally greatly outweighed by the positive ones). Will liberals consider ceasing environmental activism just because a McDonald's, a fur store and medical-research laboratories were once firebombed? And warning of pedophilia — as I did in a soon-to-be-published piece on rampant child sex abuse in Hollywood — is always a good work. But what if someone reads my piece and then, enraged, attacks an entertainment figure or sets fire to a production studio? Should I be legally liable?
The Lively case is only different in that the pastor engaged in unfashionable activism. And it's easy to see what placing Americans at the mercy of "international law" can lead to. Consider a short list of activities that could one day, under the CCR's conception of the alien tort statute (ATS), result in Americans being tried by American courts using international law:
The above is absolutely possible — all we'd need is for the social winds to blow in the right (or wrong) direction.
And what of this ATS? It was enacted way back in 1789, possibly in an attempt to appease the British after they threatened to retaliate for states' refusal to satisfy British creditors, as provided for in the treaty ending the American Revolution. This is perhaps why courts based jurisdiction on the ATS only twice between 1789 and 1980. Not surprisingly, however, it has been expanded since ‘80, with judges struggling to determine what is applicable under it. My suggestion?
End the struggle by rescinding the ATS.
Little good comes from ambiguous laws that will continually be interpreted and reinterpreted by an ever shape-shifting judiciary. And these laws almost always benefit the left. After all, conservative judges tend to be originalists who vote based on the law and put their personal beliefs aside, so they generally won't use ambiguous legislation to advance traditionalism. Leftist judges, however, are relativists who often believe the end justifies the means, and ambiguous law is a favored vehicle through which they can impose their values from the bench.
I don't think the SMU/CCR will prevail in their case against Lively — not now, anyway. But with many American judges today having the mentality of Ruth Bader Ginsburg, who once told a liberal attorneys' group that the law profession "must start looking for inspiration beyond our borders, to the laws and constitutions of other nations," the ability to consider international law when adjudicating should be strictly prohibited. If some foreign statute truly is a good idea, it's up to the people to enact it through their representatives. No adjudication without representation.