Skip to comments.New Court Ruling Could Nullify First Amendment
Posted on 08/21/2013 11:13:04 AM PDT by fwdude
Judge Michael Ponsor has ruled in Sexual Minorities Uganda v. Lively (2013) that Scott Lively, through his talks in Uganda in opposition to homosexual behavior was in fact aiding and abetting a crime against humanity.
Lively, an evangelical pastor, was sued in a Massachusetts federal court by a foreign group called Sexual Minorities of Uganda (SMUG) based on provisions in the Alien Tort Statute (ATS). If this decision is upheld, every foreign group with a grievance will appeal to the ATS and inundate our courts with claims of injustice, and the First Amendment will not offer any protection.
Judge Posnor went on to write in his 79-page ruling that Livelys anti-same-sex views can be compared to that of an upper-level manager or leader of a criminal enterprise. They are, according to Judge Ponsor, 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.
So speaking out against behaviors that only recently in the United States have been deemed lawful is akin to genocide?
Weve seen this type of leftist logic before, and its not surprising that it came from a judge who was supported for the bench by John Kerry and Ted Kennedy and appointed by Bill Clinton. Soon after Timothy McVeigh bombed the Alfred P. Murrah federal building in Oklahoma City in April of 1995, some on the left of the political spectrum blamed anti-government rhetoric for the assault. Supposedly hateful speech directed at politicians had incited a cadre of right-wing extremists to put words into explosive action.
A similar blame-game tactic was tried by then Sen. Tom Daschle (D-SD) after the loss of the Senate to the Republicans in the 2002 mid-term elections. He blamed talk radio, and compared American fundamentalists to Islamic extremists. He claimed that critical talk about certain politicians and their policies could lead to a hostile environment that could spur people to violent acts. Daschle offered no empirical evidence to back up his claim.
On the 15th anniversary of the Oklahoma City bombing, former President Clinton once again tried to make the connection between speech and domestic terrorism. The following is the reaction from a New York Post editorial:
[Clinton drew] implicit parallels between bomber Timothy McVeigh and peaceful if rambunctious political dissent like the Tea Party movement. Like we said: shameless.
What about Judge Ponsors claim that speaking out against homosexual behavior is akin to aiding and abetting a crime against humanity? Is there such a thing in the world today? We kill about 1.2 million pre-born babies in America each year, but this is not a crime against humanity.
Texas State Senator Wendy Davis gets a multi-page spread in Vogue because she spoke passionately in defense of permitting the killing of late term pre-born babies.
The article makes no mention of how, during a speech and press conference last week, Davis called abortion sacred ground and indicated she may run for governor. Later, she indicated she thinks pro-life women dont understand abortion and she showed she has no understanding of the Kermit Gosnell case.
Nothing is said about how the Southern Poverty Law Centers claim that Family Research Council is a hate group influenced a pro-homosexual man to shoot up the organization and kill the employees.
Maybe we can deduce that President Obamas pro-Muslim Brotherhood rhetoric has led to the destruction of Christian churches in Egypt and the persecution of Christians.
Across Egypt, at least 60 churches have been targeted, along with Christian schools, homes,businesses and even an orphanage, according to conservative estimates. In the areas of Minya, Beni Suef, Fayoum and Assiut, Christian homes and businesses have received leaflets warning them to leave or face reprisals by Islamists, Christians said.
A man speaks about the immorality of certain sex acts, and hes aiding and abetting a crime against humanity? Judge Posnors ruling, if it stands on appeal, is one of the most dangerous decisions ever to come from the bench.
The Liberty Counsel has insisted that Lively exercised 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 protection.
If higher courts on appeal disagree, the days of free speech for conservatives are over.
Read more at http://godfatherpolitics.com/12222/new-court-ruling-could-nullify-first-amendment/#mMX2kIGJEGHzMEaL.99
They [Pastor Lively's beliefs] are, according to Judge Ponsor, 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.
For a serious discussion of the process, see Leftwing Word Games & Religious Freedom.
If nothing else, it points up how critical it is for the Senate to carefully examine judicial appointments.
I seem to recall from Joyce's Portrait of the Artist as a Young Man that "smugging" was boarding-school slang for sodomy-related activities. Adorable as always, those poofter groups.
And by the way, no ruling by a court can nullify the First Amendment. But the First Amendment can, and will, nullify many a court. Let the games begin.
Mohammed was a Child Rapist.
Bears repeating every time someone tries to shut down the First Amendment.
Judge Michael Ponsor needs to be tarred and feathered and then run out of town on a rail as the enemy of liberty he is declaring himself to be.
He’s a BillyBob appointee.That explains everything.
A link to the Judge’s written opinion would be helpful.
No court can do so in a way that's akin to actual repeal...a repeal lawfully carried out in the way set forth in the Constitution itself.But at least one court can so so in a defacto fashion.And if Osama Obama gets many more shots at nominating a SCOTUS justice that *will* happen *much* sooner rather than later.
I did a legal internship with Liberty Counsel. They are good people with a good track record of winning First Amendment cases. With them in his corner, Lively has an excellent chance of surviving this challenge.
BTW, their business model relies mostly on supporter contributions for certain high profile, hgh impact cases, like this one, so they can put up a good fight even if the client is stone cold broke. Something to thnk about if you have any loose change floating around. It’s one thing to do verbal battle with the defeatist trolls that inhabit these parts, but it takes real money to wage an effective legal battle, even for a good cause like this. Just sayin ...
This judge should be disbarred. I guess that all practicing Catholics including the Pope are also committing sins against humanity. What a schmuck!
There are limits to the 1st Amendment. Not being allowed to yell fire in a crowded theater is one. Speaking out in a way that incites a riot is another.
Back in 1992 I supported, and still support, the idea that Maxine Waters and others should have been held criminally responsible for her part in inciting the Rodney King riots. The same is true for Al Sharpton and the Freddies Fashion Mart murder.
Had there been Trayvon Martin riots last month I would have supported arresting Sharpton, Jesse Jackson and many others on the Left (including in the press) for incitement.
So this Lively situation needs more context and details. If he was actively drumming up violence he should be held accountable for any repercussions. Emphasis on “actively”, of course.
Since this is a case under the Alien Torts Statute then I highly doubt the First Amendment applies/is relevant.
This article is deceiving. There is no ruling yet.
The case HAS NOT even gone to trial.
While noting that SMUG’s allegations must be proved at trial, Judge Ponsor wrote in his decision that “they are sufficient, as allegations, to state a claim for the commission of a crime against humanity against” Lively. He referred the case to Magistrate Judge Kenneth P. Neiman for pretrial scheduling.
The Republican House of Representatives should impeach the judge for this ruling because it is clearly in violation of the words and intent of the Constitution. To rule in this manner indicates he is incompetent and a danger to the Republic.
This would be a terrific issue for the Republican House to throw at the Democrat Senate. Impeach this judge for this atrocity and any more anti-Constitution far left rulings he has made since arriving on the bench. Put Harry Reid and the Democrats in the Senate in a position of defending a judge for acting directly against the fundamental freedoms. Let the left wing media howl. Demonstrate to the people the Republican Party supports the Constitution and individual freedom.
The GOP has been cowering in the corner for 5 years. Either get on the offensive and get the electorate stirred up or accept the boundaries placed on the opposition by the media and the Democrats.
Unfortunately, Boehner doesn’t have the leadership ability to take on this type of reasonable defense of the Constitution, must less the guts to stand up to the inevitable media storm the impeachment of a leftist judge would provoke.
The hour is becoming late. If the GOP doesn’t take a stand for freedom soon, there will be nothing to defend.
“There are limits to the 1st Amendment. Not being allowed to yell fire in a crowded theater is one.”
Unless there is a fire, I suppose? Rodney King? I was working nights, and saw the first time the video “beating” was aired. Quite different from what aired a couple hours later!
Those are excellent examples. And yes, we definitely need more information.
Here’s something I picked up on ATS Wikipedia:
“...This statute is notable for having allowed U.S. courts to hear human-rights cases brought by foreign citizens for conduct committed outside the United States. However the Supreme Court ruled in 2013 that the Alien Tort Statute does not apply to corporate defendants nor conduct which occurred outside of the United States, in the case of Kiobel v. Royal Dutch Petroleum.”
It’s hard to believe this will go much further, since Lively was in Uganda. I wonder if his ministry is incorporated.
mohammed was also possessed by demons, when he wrote sections of the koran, by his own admission in the text.
Agreed. The Fed judge is just disregarding the new SCOTUS decision, but it really does cut the legs out from under SMUG’s jurisdictional argument. What the Ugandan parliament decides to do legislatively after taking testimony from a US evangelist is between Ugandan leadership and their people, at least as far as our judiciary is concerned. Especially when Lively argued for greater leniency than what that parliament finally came up with.
My agreement is not with gdani but tsomer. My apologies for reversing the order, although I am sure it was clear by the end of the post anyway.
A link to the opinion is available in the first sentence of the article’s source page, but here is the URL:
Yes, I give to Liberty Counsel regularly, knowing they do good work. The rage of the sodomites against them is proof.
The trail has already taken place and sentence rendered in Posner's warped mind. Read his opinion. It oozes with contempt for Lively and contains all of the invented homo-fascist empty talking points.
Right you are. The opinion is not work of a sober, impartial judge. It is the argument of a zealot.
Judge Michael Ponsor needs to be tarred and feathered and then run out of town on a rail as the enemy of liberty he is declaring himself to be.
One further point. Assume for the sake of argument ATS applied (which I do not believe is the case). The interaction between tort law and constitutional law is not one of artificial compartmentalization, but of seamless integration. An American citizen, at least in theory, cannot be condemned in tort *by an American court* for exercising a fundamental constitutional right, even if such action is disapproved by a foreign or international body of law.
Furthermore, it is a given that Ugandan law is not the issue, i.e., has not been breached by Lively. The only possible basis is international law, which is basically treaty law, including any relevant UN agreements or “understandings,” and so falls under the precedent of Reid v Covert and similar such cases, which have uniformly recognized positive, fundamental constitutional rights as superior to and unaffected by treaty.
So you cant keep free speech out of it. Tort law requires there to be a duty, a breach of that duty, and a causal, legally proximate relationship between that breach of duty and some real harm in consequence. For Americans under the First Amendment, there is no duty to hide ones viewpoint due to hypothetical harms that may or may not result. Falsely shouting fire in a theatre is not expression of a viewpoint, but a reckless or perhaps malicious misrepresentation of physical facts. Stating that a government should discourage social and legal accommodation with homosexuality, on whatever grounds, is viewpoint expression, and that is protected, and could never be reasonably considered a breach of duty under tort.
Looks like an another attempt to extend the notion of vicarious liability. The allusion to RICO by this judge is interesting. Sure, that law was used to bring down the Italian Mob, so people think it’s a good thing and necessary tool for law enforcement. There have been unintended consequences that have had huge detriment to liberty, and more only now manifesting.
Day by day, the metaphors of the slippery slope and the camel’s nose become more obviously true.
You are wrong. The 1st Amendment is a restriction on Congress.
crowded theater scenario was part of a USSC ruling regarding the first amendment basically saying that the it doesn't absolutely constrain congress. This was in order to justify prosecution of anti-draft literature/fliers in WWI, which is exactly the sort of political speech the founding fathers had in mind. — Basically this ruling is the same thing that Wickard was: refusal to smack down an overreaching Congress.
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