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Court tells homophobic politician he can't appeal ruling that he won

A year after a federal judge dismissed a lawsuit against gay-hating Scott Lively by a group representing LGBT citizens of Uganda, a federal appeals court has ruled that the judge's condemnation of his "crackpot bigotry" is no reason to overturn the ruling - because he won the case.

Angered by the judge's criticisms of his writings that gays have been responsible for everything from the Spanish Inquisition and slavery to the Holocaust, and that homosexuality is worse than mass murder, Lively appealed US District Court Judge Michael Ponsor's ruling that a group of gay and lesbian Ugandans had no standing to sue Lively over his role in drafting that country's draconian anti-gay law, because Lively did not do the bulk of his work on the legislation in the US.

Lively is making his second run for Massachusetts governor this year, this time as a Republican. In 2014, he won nearly 20,000 votes as an independent.

In his ruling, Ponsor took great pains to emphasize he was deciding only the technical question of who can sue a US citizen for action overseas, not siding with Lively's arguments:

Anyone reading this memorandum should make no mistake. The question before the court is not whether Defendant's actions in aiding and abetting efforts to demonize, intimidate and injure LGBTI people in Uganda constitute violations of international law. They do. The much narrower and more technical question posted by Defendant's motion is whether the limited actions taken by Defendant on American soil in pursuit of his odious campaign are sufficient to give this court jurisdiction over Plaintiff's claims. Since they are not sufficient, summary judgment is appropriate for this, and only this, reason.

In his appeal, Lively argued such comments had harmed and were continuing to harm his reputation and asked the appeals court to strike them from the record.

In reply, a three-judge appeals panel said Ponsor's comments were "dicta" - or statements that did not apply directly to the ultimate ruling or set any precedent and so not something subject to appeal. And the court said striking them would go against precedent that appeals courts normally only consider appeals from parties who have lost a case.

Searching for traction, Lively complains that the challenged statements damaged his reputation. Whether or not this is true, the overriding principle is that "critical comments made in the course of a trial court's wonted functions - say, factfinding or opinion writing - . . . provide no independent basis for an appeal." In re Williams, 156 F.3d at 92. Lively's embarrassment in the face of the district court's unflattering comments, without more, cannot suffice to manufacture appellate jurisdiction where none exists. See id.; see also In re Shkolnikov, 470 F.3d at 25.

The court concluded:

We lack jurisdiction to entertain Lively's importunings that we purge certain unflattering comments from the district court's opinion.

The court then rejected another demand by Lively, that it stop the group from pursuing a claim under Massachusetts law - saying Lively had hoisted himself on his own petard, because his appellate argument was counter to the argument he made in the lower court, and that is a judicial no-no.

[I]t brings into bold relief the doctrine of judicial estoppel, under which a litigant may be precluded "from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase." ...

Although Lively raises a gallimaufry of defenses to the state-law claims under the First Amendment, our decision in no way forecloses him from raising these merits-based defenses in state court.

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Comments

The lady doth protest too much,

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The lady doth protest too much,

Kudos for actually using the Shakespeare cite as intended.

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Gertrude uses the word "protest" in the sense of "make a protestation or affirmation". The Player Queen has just made a long speech (written by Hamlet) swearing that her love is so true that on no account could she ever consider remarrying should her husband die. Gertrude, who has remarried rather hastily after her own husband's death, understandably thinks this is a bit strong, and, when Hamlet asks what she thinks, says that she thinks that the lady protests too much. It is exaggerated protestations of love to which she refers, not to any sort of complaint.

Sorry. It's Saturday, the rain is clearing the air, and the Shakespearean air needs to be cleansed of the taint of association with the filth of Scott Lively.

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The Queen in The Murder of Gonzago is going over the top in her protestations of love. It isn't that Gertrude thinks the Queen has gone too far, rather she's incredulous. Basically she's saying, "Who are you trying to convince, lady?"

Put plainly, Fred Quimby is implying that Scott Lively is a self-loathing homosexual embarked on a Pencian campaign to convince us otherwise.

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as a possible reading if Quimby's remark is aimed at Lively's homophopia in general, which never occurred to me. Given that the article is about Lively's protestations of the language of a legal verdict in his favor, I took for granted that those were the protests that the quote was meant to refer to.That still seems to me the most reasonable inference.

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As a gay male I take umbrage to the "every blustery homophobe is actually a secret repressed homosexual" meme that everybody, my LGBTQ brethren included, always seem to default to. Believe it or not, some people are just plain old homophobic heterosexuals.

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https://www.elitedaily.com/news/world/homophobic-men-aroused-gay-male-po...

Of course, these results have probably been overinterpreted, but it is intriguing nonetheless.

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Obviously not.

You clearly didn't read the article or the study either.

This is one of the sources of the meme - scientific evidence.

That evidence itself is not homophobic. It simply is.

I am assuming that you are not a scientist - you are in too much of a hurry to find something that isn't there. The article is simple enough for you to understand, though.

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I read both. Did you read the article I cited?

Again: way to miss the point.

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I've always thought there was something homophobic about deriding homophobes as secretly gay. A kind of homophobia against homophobia, if you will. I can see that it can be satisfying, because they hate it so much, but it grants acceptance, if only in pretence, to the idea that it's shameful to be gay.

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It's quite Orwellian. Supposed open minded liberals, in their zeal to denounce homophobes, are actually "taunting" them they they are gay. As a gay man, these "taunts" are suspiciously reminiscent of the schoolyard taunts I was on the receiving end of.

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Supposed open minded liberals, in their zeal to denounce homophobes, are actually "taunting" them they they are gay.

It's not just "[s]upposedly open minded liberals". Right-wing ideologues and their slavish followers do it at the drop of a hat. Even worse, to my mind, is when they bluster about gays being thrown from rooftops in Chechnya, as if they themselves would ever bother to spit on a burning homosexual, for fear of quenching the fire.

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Yes, but such behavior is expected of right wing ideologues. The Orwellian or "everything is the opposite of what it is" part comes in when progressives, as they so frequently do, denounce high profile homophobes, and by way of insulting them presume they "doth protest too much" and are in fact, secret, twisted, repressed homosexuals and all around horrible people as a result. This is engaging in homophobia while denouncing homophobia. And it happens all the time.

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The court gets extra points for using "gallimaufry" .

I don't recall ever seeing that word before.

And I might as well include the mandatory statement that Lively is a bona fide whacko. Actually saw one of his signs on someone's lawn during a bike ride yesterday.

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The man's passion for obscure words goes back decades:

https://www.nytimes.com/1992/03/27/news/bar-sustained-dictionaries-judge... (may be behind a paywall)

The only judge on the First Circuit who might be a successor is Judge Barron, who gave us the definitive explanation of the Oxford Comma.

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Many people think that a 'petard' is some form of spear, but it's actually an explosive:

https://www.phrases.org.uk/meanings/hoist-by-your-own-petard.html

Thus, once can be hoist 'by' but one likely cannot be hoisted 'on' a petard...

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Gallimaufrey stands.

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Is he a time lord?

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gallimaufry: noun, a confused jumble or medley of things.

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...Like Sheppards Pie?

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In his appeal, Lively argued such comments had harmed and were continuing to harm his reputation and asked the appeals court to strike them from the record.

As we all know, the best way to make sure that nobody ever sees these things is to make them as visible as possible by conducting lawsuits complaining about them.

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Whether Scott Lively is a bloated, fart-huffing douchebag is beyond the remit of this court.

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I know few facts (plenty of hyperbole) about Lively and would have advised him to celebrate the initial victory without appeal. Still, Lively may have another victory coming. Charlie Baker now spending a small fortune on (terrible) TV ads as an incumbent in a primary reveals Baker is terrified.

I'm told Baker's internal polling is very scary for the primary. The million plus President Trump voters in MA will come out, many against Baker who proudly cast a "blank" ballot in the Trump/Clinton race and has disrespected President Trump ever since. He will lose much of the Republican vote and unenrolled/independents may choose a Democrat ballot where Baker is not listed. Baker would have been smart to list himself on both R and D ballots and pay to gather the signatures.

With a very small turnout and most independent/unenrolled taking a Democrat ballot in the Galvin/Zakim or Capuano/Pressley race, Baker has a serious problem and he knows it. Baker may still win but it will be an interesting night. If Democrats had any organization they would switch a few hundred thousand activists to Unenrolled and knock out Baker in primary since apparently Lively's past makes him unelectable in final.

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Is sad and illogical.

Baker is running for governor, not idiot troll enabler. Most people want a governor.

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Mark Fisher promised to gut food stamp programs because he hated immigrants. He wanted to remove all tolls from the Mass Pike. He also wanted everyone to have lots of guns everywhere and lots of things that Trump wanted.

He got 25% in the Republican Primary.

I don't think Charlie is worried about some lunatic who committed international hate crimes and paid $$$ for beating up gay people in Oregon and has a massive history of mental instability (to be charitable).

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Politicians often run ads in advance of primaries that they have locked up because it is an easy and cheap way to preemptively kickoff their general election campaign.

Last time Baker ran, he ran against a Trumptastic Knuckledragger with "big ideas" and won the primary by an enormous margin. I somehow doubt that a homophobic bigot with such a long history of thuggery and civil rights violations is going to get many votes beyond that 25% base that turned out for the knuckledragger last time - in other words, the rabid and delusional ones aren't changing, but they aren't getting many friends either.

Most recent polls show a 70 to 17 lead for Baker. The State GOP is moving on to polling for the general election, and doesn't even mention Lively in their recent poll. Baker is the nation's most popular governor, even in his own party.

Sorry. No unhinged homophobic thugs need apply.

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Lively is a sociopath, and anyone who would vote for him is seriously damaged goods. And that's a problem we all have to deal with.

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People who are comfortable with their own sexuality are not uncomfortable with others sexuality.

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