Statement on Dismissal of Curley Anti-Free-Speech Suit

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April 24, 2008

Statement by David Thorstad on Dismissal of Anti-Free-Speech Suit

As one of the “defendants,” I welcome Judge George A. O’Toole Jr.’s dismissal yesterday of the “wrongful death” civil suit against NAMBLA et al. O’Toole, of the United States District Court for the District of Massachusetts in Boston, should have done so years ago. I was one of the defendants retained after NAMBLA as an organization was dropped from the suit because it could not be sued as an association. The judge’s decision, apparently unavoidable since the plaintiffs and their money-grubbing attorneys could not provide a shred of evidence, came nearly eight years after Robert and Barbara Curley filed suit seeking $200 million from NAMBLA and its officers. I myself was dragged into this exercise in wasting the court’s time and harassing innocent men not because of anything I had written or said or done, but merely because my name appeared on the masthead of the NAMBLA Bulletin—until I resigned from the collective, coincidentally, only about one month after the Curleys’ ten-year-old son Jeffrey was murdered in 1997 by two young men who, I understand, were known to his family. I myself knew neither them nor the family, and was not even aware of the murder at the time. The family filed suit three years later in what was clearly a fishing expedition and fund-raising tool. Their lawyer was one Lawrence Frisoli, who, like many in his profession, tried to use the case to catapult himself into public office, but he was soundly defeated in his run for Massachusetts attorney general in 2006. The murderers were Salvatore Sicari and Charles Jaynes. They are not the kind of people I would have known or associated with.

Not only was their murder of this boy beastly, but it caused such outrage—doubtless in part fed by hysteria about the Catholic priest sex scandal, and fanned by the media and politicians—that it nearly led to reintroduction of capital punishment in Massachusetts, one of the dwindling number of states without the death penalty.

The two men took young Jeffrey to the Boston Public Library, where Jaynes reportedly accessed the NAMBLA Web site. That site contains nothing inflammatory or illegal, or anything anyone in his or her right mind could construe as encouraging rape or murder of anyone. Wendy Kaminer, in one of the few articles challenging the lawsuit (another excellent one was written by Patrick Califia-Rice), said the site “seemed a lot less incendiary than the Bible.” But Frisoli, who was joined by the conservative Thomas More Law Center—which used the case as a fund-raising tool, including by running an appeal by Mrs. Curley—claimed that viewing the site turned the two young men into murdering monsters. (The antigay Thomas More Law Center was also behind the attempt in Dover, Pennsylvania, to impose pseudoscientific “intelligent design” on the public schools and, after losing that effort, it has now suffered another well-deserved defeat by the dismissal of this suit, which it used as a cash cow.)

Jaynes, it turns out, using a pseudonym, had subscribed to the NAMBLA Bulletin, making him a “member,” but that is the only ever-so-threadbare connection he had to the organization. He never attended a meeting, whether of a local chapter in Boston or a national conference. He was not known by anyone in the organization, let alone the defendants. As a very large and overweight black man, he would have stood out in a gathering of mostly white people, and thus have been an unforgettable presence, and the plaintiffs never could provide any evidence to back up their wild claims of his involvement with the organization. After Jaynes “joined,” their suit asserted, he “became obsessed with having sex with and raping young male children.” Even more crazy, it claimed that “Prior to joining NAMBLA, Charles Jaynes was heterosexual”! This is a novel twist on the ridiculous “prairie fire theory of homosexuality,” so dear to heterosupremacists who find homosexuality disgusting, but at the same time so appealing that the merest exposure to it can turn a “normal heterosexual” into a pervert.

“The absurdity of these claims makes it difficult to take them seriously,” wrote Kaminer. “But this lawsuit has already had serious chilling effects on speech.” NAMBLA’s Web site was shut down for a while after the suit was filed. “Unpopular speech, especially unpopular speech about sex, is regularly blamed for sexual violence and ‘deviance,’” she observed. “Pornography causes rape, according to antiporn feminists. Sex education causes teen pregnancy, according to their counterparts on the right. NAMBLA’s advocacy of ‘man-boy love’ causes homosexuality and violent predatory behavior, according to the Curleys’ lawsuit.”

Defense of NAMBLA in this case, and denunciation of the blatant attack on freedom of speech and association, was far from widespread, whether among progressive, libertarian, or gay groups. Besides the two articles mentioned, the Spartacist League was one of the few to have rallied to the defense of constitutionally protected speech. NAMBLA itself did not promote coverage of the suit, preferring to keep a low profile. When the suit was filed, one gay group that supposedly defends same-sexers from defamation—the Gay and Lesbian Alliance Against Defamation—actually rushed to join in the attacks on NAMBLA. To their shame, national gay and lesbian organizations remained silent.

The case ought to have been dismissed years ago, because it was clear from the start that it lacked all merit. The plaintiffs never even took a single deposition, despite the judge’s granting them that privilege. Their harassment of innocent individuals with no connection to their loss of their son (a loss the defendants deplored, having had only sympathy for the parents’ grief) and their misguided effort to destroy a legal organization have now ground to a halt. The case was dismissed “with prejudice,” which means that it cannot be filed again. But what does it say about American “democracy” that such a worthless case was allowed to continue for nearly eight years?

The hero in this sad tale is the Massachusetts Civil Liberties Union (MCLU). The high professionalism of their lawyers, John Reinstein and Sarah Wunsch, and the MCLU’s commitment to principle, deserve all the credit for the victorious outcome. My files from this case are a foot and a half high, and reflect not only eight years of outrageous harassment, loss of sleep, worry, and frustration, but also the wonderful and detailed lawyering of the MCLU. Both sides will bear the costs of the suit, but in truth, the MCLU should be reimbursed by the Curleys, Frisoli, and the Thomas More Law Center, which brought this frivolous suit, capitalized on the parents’ grief, and promoted harassment of innocent men. The MCLU not only saved constitutionally protected rights one more time, but it prevented possible financial ruin by the many innocent men whose names were dragged through the mud as a result of this vindictive suit. The ACLU is one of the few bulwarks against the creeping police state that the United States has become. It deserves the support of everyone who cares about civil liberties and justice.

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