Last week a federal district court in Massachusetts issued a somewhat surprising opinion on the Alien Tort Statute. The plaintiff alleged that a U.S. citizen named Scott Lively committed crimes against humanity by engaging in anti-gay advocacy in Uganda, including attending conferences, speaking in public on a purported link between homosexuality and pornography, publishing books about his views, and consulting on a draft anti-homosexuality bill for the Ugandan Parliament, the cumulative result of which was to intensify public and private persecution of gays and lesbians in the country. Based on this same conduct, the plaintiff also filed counts for aiding and abetting liability and conspiracy to commit crimes against humanity. Lively responded by moving to dismiss on the ground that there is no international norm against the persecution of gay people, and that even if such a norm exists it enjoys insufficient acceptance and specificity to satisfy the standard set forth in Sosa v. Alvarez-Machain. The court denied the motion and, in a first for ATS litigation, held that “[w]idespread, systematic persecution of LGBTI people constitutes a crime that unquestionably violates international norms,” and that ATS jurisdiction was proper because “[a]iding and abetting in the commission of a crime against humanity” satisfied Sosa.

I oppose Mr. Lively’s bigotry and sympathize with the court’s decision. But I also think it’s important to be honest about the decision’s legal merits, which is to say that I think the court probably got a couple of things wrong. Most fundamentally, I’m skeptical that it’s a crime against humanity under current international law for a private individual to advocate discrimination against gay people (or any other group). Tellingly, the opinion didn’t cite any authority that is directly on point—all of the cases and other sources involved other types of conduct.

Lively’s actions also seem insufficient under the Rome Statute, which in relevant part defines “crimes against humanity” as:

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 . . . [p]ersecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender . . . 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.

The other acts “referred to in th[e] paragraph” are murder; extermination; enslavement; deportation or forcible transfer of population; imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; torture; rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; enforced disappearance of persons; the crime of apartheid; or “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”

This definition suggests that the court erred in two respects. First, the Statute defines crimes against humanity as including persecution only “on political, racial, national, ethnic, cultural, religious, gender . . . or other grounds that are universally recognized as impermissible under international law.” Sexual orientation doesn’t comfortably fall into any of those categories. Gender expressly refers only “to the two sexes, male and female, within the context of society,” and given the limited state of gay rights even in relatively progressive countries like America, it’s simply not the case that discrimination on the basis of sexual orientation is “universally recognized as impermissible.” Second, even assuming that sexual orientation is a cognizable category of persecution, the court failed to explain how such persecution occurred “in connection with” another prohibited act. If the court had engaged in that analysis, the only category of supplemental conduct that gets even close to the allegations in the complaint is “other inhumane acts.” But even that category probably doesn’t apply, given its requirement that the inhumane acts be of a character “similar” to that of things like extermination, torture, and rape. As bad as Lively’s conduct appears to have been, it was not accompanied by acts that most people associate with crimes against humanity. There’s a material moral difference between, on one hand, writing books and giving speeches that favor discrimination and, on the other, acting like President Assad. That difference raises legitimate questions about whether the prohibition was intended to extend to acts of speech.

But let’s assume for the sake of argument that Lively’s acts constituted a crime against humanity. What then? I think the court also erred by botching the Sosa test, which permits a federal cause of action under the ATS only for norms that are “accepted by the civilized world and defined with specificity comparable to the 18^th-century paradigms [the Court has] recognized”—i.e., prohibitions against infringement of the rights of ambassadors, violation of safe conduct, and piracy. Given the apparent absence of any specific authority for the norm in question, it’s hard to see how the norm could satisfy Sosa. If the prohibitions that courts typically recognize are clearly defined, widely accepted, and longstanding, the law designating persecution on the basis of sexual orientation as a crime against humanity appears to be precisely the opposite—fuzzy, controversial in parts of the world, and nascent. The court tried to sidestep this problem by pointing out that the concept of aiding and abetting liability is well-defined and accepted, but that conclusion makes no sense unless the primary offense to which the aiding and abetting liability pertains is itself compliant with Sosa. To conclude otherwise is just bootstrapping—i.e., it’s allowing the clarity of the general prohibition on aiding and abetting to overcome the murky status of the primary offense. I’m not aware of any other ATS case that allows for that.

As one last point, I think it’s worth noting that there’s a potential tension here between international law and the First Amendment. All of Lively’s conduct appears to have taken the form of advocating discrimination. Even assuming that international law prohibits such conduct, the right to free speech may in turn prohibit a court from imposing liability. One decision that comes to mind is Snyder v. Phelps, where the Supreme Court held that members of the Westboro Baptist Church had a First Amendment right to protest at the funerals of deceased U.S. soldiers. It’s not clear that Lively’s conduct was any worse.