Imagine you go overseas and give a speech advocating a cause only to come home and find youre being sued for crimes against humanity." No what you did wasnt illegal under American law or under the laws of the nation in which you expressed your words.
Youre being sued under international law.
And heres 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.
Livelys 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 isnt or shouldnt be about what Lively did or didnt say; its not about the particular. Its about the principle:
American courts can adjudicate cases of American citizens sued under law (international law) that the peoples 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 pastors 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 cant see that any of Livelys 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 Livelys lawyers."
Again though this isnt about the facts of any particular case. Its about using extra-constitutional means to trump Americans constitutional rights; its 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 plaintiffs theory would leave no clear line between speaking ones mind and engaging in a criminal conspiracy at least if speaking ones mind could be plausibly connected to some bad outcome. That theory seems very easy to abuse."
Thats 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 Obamas post-Trayvon Martin shooting statement If I had a son hed 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.
Everyone.
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 McDonalds 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 its 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 CCRs conception of the alien tort statute (ATS) result in Americans being tried by American courts using international law:
- Giving an overseas speech promoting Zionism: note that much of the world is very anti-Jewish. In fact the United Nations once even adopted a resolution equating Zionism with racism."
- Christian evangelization even in a nation where the majority welcomed it: evangelization is illegal in certain places and frowned upon in many others. If Christianity falls into even greater disfavor in the future spreading the faith could come to be viewed as an invidious imposition of values."
- Giving a speech on what you view as the dangers of Islam in front of even a receptive foreign parliament: hate-speech laws prohibiting many types of criticism of Islam already abound in the West.