An Excerpt from 36 Seton Hall Legis. J. 409
THE SPEECH ACT DEFENDS THE FIRST AMENDMENT: A VISIBLE AND TARGETED RESPONSE TO LIBEL TOURISM
Libel tourism is the term given to the practice of obstructing the First Amendment by suing American authors and publishers for defamation in foreign courts where a lower legal standard allows for easier recovery. Libel plaintiffs typically seek out countries whose laws disfavor speech critical of public figures, and the countries often have a tenuous connection to the purportedly defamatory statements that prompted the suit. This new trend ultimately undermines the Constitution’s First Amendment principles of free speech and free press by providing a “legal loophole.” Moreover, due to the rise of technological advances and Internet accessibility worldwide, a published document has the potential to appear in any jurisdiction in the world.
As a result, a libel plaintiff may have the option of initiating litigation in any jurisdiction they may choose, even though the publication occurred in the United States. In addition, under the doctrines of reciprocity and comity, the United States courts can enforce these foreign judgments so long as a court that recognizes and enforces United States judgments rendered the decision. All these circumstances taken together effectively allow the foreign libel plaintiff to bypass the protections afforded by the First Amendment.
A foreign defamation judgment may have wide-ranging implications. Arguably, the one most concerning and troubling for media defendants is its ability to chill their protected First Amendment free speech rights. Libel tourism’s chilling effect cuts off the free flow of information that should reach the public, and instead silences authors and journalists. Journalists are often compelled to self-censor their speech to ensure that their statements not only conform to the standards of the First Amendment, but also that they satisfy the more “stifling strictures of English libel law.” Although it is difficult to evaluate if and how libel tourism may chill free expression because it is impossible to catalogue what has been held from publication, testimony from prominent media lawyers indicates just how far reaching the chilling effect is, particularly on writings about controversial international subjects.
As a further illustration, Laura Handman, partner at Davis Wright Tremaine, LLP testified that the U.S. publishers her firm represents repeatedly receive letters on behalf of U.S. celebrities and businesspeople from both U.S. and British law firms threatening lawsuits in England if the allegedly defamatory statements are published. If the work has already been published, U.S. publishers are eager to settle the claims because of the high economic risk, and the knowledge that the claim will likely succeed in England. Consequently, while media lawyers may feel reassured that their clients are well protected by the First Amendment in the United States they must also counsel their clients about the risks of their work being exposed in England and the high probability of eventual litigation.
Furthermore, Dr. Ehrenfeld experienced first-hand the chilling effects that the English judgment against her had on her U.S. protected free speech rights. She testified that she had many “sleepless nights” worrying that Mahfouz would come to New York to enforce the English judgment against her. Although he never attempted to enforce the judgment in the United States, the potential that he would “left it hanging over [her] head like a sword of Damocles,” thereby exacerbating the chilling effect. In addition, Ehrenfeld testified that the English judgment affected her ability to publish, and to travel to England, lest she be arrested to enforce the judgment against her. Those who once “courted” her now refuse to publish her. Ehrenfeld was not Mahfouz’s only victim; he has obtained settlements in nearly forty cases, and boasts about his conquests on his website, thereby silencing and intimidating any of his would-be critics.
It was evident from the Ehrenfeld decision that to combat the problems of libel tourism effectively, a legislative response was crucial. The decision prompted a national public outcry and united free speech advocates to fight on Ehrenfeld’s behalf. New York responded with the Libel Terrorism Protection Act and other states were quick to follow with similar versions of their own. In August 2010, the SPEECH Act, a federal answer to libel tourism, was signed into law by President Barack Obama. The purpose is to prohibit recognition and enforcement of foreign defamation judgments against United States’ authors and publishers, as well as certain foreign judgments against the providers of interactive computer services, in other words, to prevent libel tourism. The SPEECH Act operates as both “a shield and a sword to protect [United States’ citizens] from foreign defamation judgments.” The “shield” feature in the law permits an American defendant to remain passive, given that a foreign defamation judgment cannot be enforced in the United States unless the judgment holder meets the requirements of the SPEECH Act. It also acts as a “sword,” because it creates a cause of action for declaratory relief in federal court to challenge the enforceability of the foreign defamation judgment.
The SPEECH Act provides a national response to the practice of libel tourism. Although the Act will not deter all foreign defamation litigation abroad, it is a step in the right direction. The gaps that are found in the legislation are constitutionally inevitable. Short of an international solution, the SPEECH Act reaches as far as constitutionally permissible. In addition, the SPEECH Act reminds United States citizens of America’s commitment “debate on public issues should be uninhibited, robust, and wide-open.” The SPEECH Act stands as a forceful barrier for those who wish to circumvent the First Amendment and undo the free speech protections that hold an acclaimed place in American society.
“The SPEECH Act provides a national response to the practice of libel tourism. Although the Act will not deter all foreign defamation litigation abroad, it is a step in the right direction.”
“The SPEECH Act stands as a forceful barrier for those who wish to circumvent the First Amendment and undo the speech protection that hold an acclaimed place in American society.”
published Tuesday Feb 14, 2017