Global Freedom of Expression

SMUG v. Lively: Expert Opinion of Professor M. Cherif Bassiouni

Key Details

  • Region
    North America
  • Themes
    Hate Speech

Professor M. Cherif Bassiouni drafted an amicus brief in support of Sexual Minorities Uganda (SMUG) in the pending case of SMUG v. Lively. Sexual Minorities Uganda, a non-profit LGBTI advocacy organization in Uganda, brought a case against Scott Lively, a U.S.-based anti-gay extremist, claiming that presentations he gave in 2009 and 2012 contributed to laws in Uganda which criminalize homosexuality and have led to wide spread persecution of the LGBTI community in that country. SMUG brought the lawsuit under the Alien Tort Statute. This is the first time the Alien Tort Statute has been applied to persecution on the basis of sexual orientation and gender identity.

Lively, in turn, is claiming an infringement on his rights to freedom of speech and freedom of religion. Thus far the court has disagreed stating his actions are unprotected by the First Amendment and that the case makes “plausible claims to hold the defendant liable for his role in systematic persecution, rather than merely for opinions that Plaintiff find abhorrent.”

Professor Cherif Bassiouini, an eminent international law scholar and lawyer, provided an expert opinion on two important questions relevant to the lawsuit:

  1. Whether Crimes Against Humanity constitute a category of crimes under international criminal law and is an international norm binding on all states, including the persecution of a civilian population carried out on a widespread and systematic basis?
  2. Whether such persecution would include a civilian population on the basis of its sexual orientation and gender identity?