It’s pretty easy to cook up examples of misguided speech codes and over-the-top minority activism to disparage. But there are hard cases, too. That brings me to the Lively case.
Scott Lively is an obsessively anti-gay American evangelical minister. He is, according to National Journal, “perhaps the most extreme” of a network of U.S. evangelicals who, having failed in their crusade against all things gay at home, travel abroad to connect with anti-gay activists and arm them with arguments that, for example, homosexuals will seduce their children, corrupt all of society, and eventually take over the country. You don’t need to take my word for it; read Lively’s manifesto here. It’s a 2007 missive to Russians suggesting they “criminalize the public advocacy of homosexuality,” i.e., use state power to force gay people into the closet. This is something Russia actually did last year (rather indirectly, but quite effectively).
Lively has traveled to Russia to explain the gay menace. He also been involved in similar efforts in Latvia. (You can read about that and much more in National Journal’s commendable article.) And he has been active for years in Uganda, a place where persecution of gays has taken a turn for the worse — partly, it seems fair to suppose, thanks to his efforts.
In 2012, an American group called the Center for Constitutional Rights, representing a Ugandan group called Sexual Minorities Uganda, sued Lively in federal court in Massachusetts, where he lives, for crimes against humanity. It cited jurisdiction under the Alien Tort Statute, a vague and controversial law. The suit alleges that the law gives the Ugandans standing to sue Lively for his activities, which had a crucial nexus in the U.S. and therefore come under federal courts’ jurisdiction; it also charges that Lively not only advocated bad ideas in an abstract context but helped various Ugandans conceive and manage a campaign of persecution, thus involving himself in a joint criminal enterprise.
Lively, with representation by Liberty Counsel (an evangelical legal organization), responded that in both the U.S. and Uganda he exercised constitutionally protected speech rights; that he opposes violence and neither committed nor plotted any; that Uganda did not in fact pass a proposed draconian anti-gay law, and that in any case Uganda’s political institutions, instead of himself, are responsible for its political decisions; and that the court lacks jurisdiction and the plaintiffs lack standing. If this case succeeds in reaching the expensive and intrusive discovery phase, he argues, it will chill advocacy of all kinds of ideas. In August, federal judge Michael Ponsor denied his motion for dismissal, while reserving judgment on the merits. Lively is now appealing that denial.
Having read Ponsor’s ruling and Lively’s appeal, I am pained to say that Lively seems to have the better of the argument. Not necessarily that the suit should be dismissed; the judge makes a reasonable case for allowing it to proceed to the summary-judgment phase. But it probably shouldn’t get much further than that. 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.
Why so painful? Perhaps it’s easier to understand why this is not an easy free-speech case if I change “homosexual” to “Jew.” Suppose I travel to a country where a vulnerable Jewish community faces a hostile and volatile majority; I connect with anti-semitic demagogues, some of whom are politically influential; I equip them with The Protocols of the Elders of Zion and other anti-semitic propaganda; I warn them that an international Jewish cabal will prey on their children and take over their country; I and advise them to forcibly repress Judaism. If I do all of that, what am I doing? Something more morally and legally complicated than merely exercising my First Amendment rights in the marketplace of ideas, that’s for sure.
If I could think of a way to hold Lively and his ilk legally accountable that could be reliably distinguished from protected expression, I would. Alas, I can’t. But this is a hard case for me, because in the context of Uganda (as in other countries where Lively et al. are active) there is a nexus between political advocacy and systematic violence that does not exist in, say, Baltimore. Maybe Judge Ponsor will find a defensible line. I’ll try to keep an open mind.
Here is a much easier call. Lawsuits are a lousy instrument for dealing with this problem. If Lively wins, he’s a right-wing hero; if he loses, he’s a martyr. Either way, this case has potential to spread his fame far and wide and inspire imitators. He might succeed in commandeering the Supreme Court as his stage. All pretty enticing for a nut case from the fever swamps.
Now, here’s what should be happening. Christians — especially evangelicals, and above all evangelicals who oppose gay marriage but insist they are not anti-gay (you know who you are!) — should be publicly repudiating what Lively is doing. They should make a very uncomplicated moral statement: “It is wrong and it is un-Christian to go abroad and help demagogues persecute homosexuals, whether intentionally or not.” They should treat Lively the way white blood cells treat a bacillus, walling him off before he discredits evangelicals more broadly — as surely he will.
But to my knowledge, not a single prominent U.S. Christian leader has spoken up. Not one. Think about that.
I wonder: if it were Jews instead of gays that Lively were going after, would the silence from mainstream Christians be more obvious?
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Jonathan Rauch, a senior fellow at the Brookings Institution, is the author of Kindly Inquisitors: The New Attacks on Free Thought.