An Excerpt from 53 Va. J. Int’l L. 99
THE SPEECH ACT’S UNFORTUNATE PAROCHIALISM: OF LIBEL TOURISM AND LEGITIMATE PLURALISM
Mark D. Rosen
Even assuming libel tourism to be sufficiently troublesome to merit a governmental response, the SPEECH Act is deeply flawed for three reasons. The Act parochially disregards the legitimate interests of other countries that constitutionally protect speech differently than the United States. The Act also is constitutionally parochial in relation to due process limits on personal jurisdiction, withholding recognition and enforcement unless the foreign court’s assertion of jurisdiction complies with American due process requirements. Finally, the Act’s systematic parochialism has the potential to cause harms that are greater than might be anticipated, because the Act’s broad language makes it applicable to far more than just libel tourism.
The best way to think about the SPEECH Act, and what possibly might be done in the future, is to approach the enforcement of Un-American Judgments from an institutional perspective. There are five possible institutional contexts in which the enforceability of Un-American Judgments can be determined: (1) state courts; (2) federal courts; (3) state legislatures; (4) the Congress and President when enacting statutes; and (5) the President and either the Senate or both Houses of Congress when negotiating treaties or agreements with other countries. Prior to the Act, most enforcement decisions came from contexts (1) and (3): state courts either made case by case decisions or applied state statutes that addressed the enforcement of foreign judgments.
The analysis above suggests that enforceability decisions are best made in a context in which all interested parties’ views are represented. A promising candidate to provide such context is ex ante negotiations among the interested countries. This would allow enforcement decisions to be made in a process in which the interested parties–the United States and the foreign countries–could communicate their interests and aim to negotiate solutions. The United States would not have to guess how important a particular category of foreign judgment was to another country, and vice versa. By putting many or all types of foreign judgments on the negotiation table at once, countries might be able to agree upon prospective enforcement rules that advance all their interests. Negotiations also present the opportunity for countries to create novel institutions that could facilitate enforcement of the rules on which they agree. Furthermore, negotiated solutions with other countries provide the only hope for addressing the source of the problem of libel tourism–the foreign lawsuits themselves. While the United States unilaterally can do little to limit the prosecution of such suits, foreign countries can–and might–work to limit such suits if a fair regime governing defamation judgments were to be negotiated.
Without purporting to comprehensively explain what might be done differently in the future, I would like to make three brief points: two more modest approaches that might be taken in future international negotiations, and a proposal that careful thought be given to what types of professionals ought to be involved in the future negotiating and drafting of agreements.
- Subject-Matter Specific Conventions
First, whereas the Hague Conference sought to comprehensively address all civil and business judgments, it might be better to seek agreement with regard to only one or a few areas of the law at first. After all, defamation judgments raise different issues–and likely strike national sensibilities differently–than do judgments concerning commercial contract disputes or intellectual property. Accordingly, trying to enact a single convention that addresses all judgments–as the Hague Conference tried to do in the 1990s–might be too complex an undertaking. Moreover, since less would be at stake in each subject matter specific convention agreement insofar as no single agreement would address all judgments, it might be easier to reach consensus on single subject conventions.
- Bilateral and Multilateral Agreements
There is a second path of moderation that could be taken in future international negotiations. In contrast to the Hague Conference’s aim to achieve a global convention, a future effort might instead pursue a series of bilateral or multilateral agreements. Though the payoffs are less, it likely would be simpler to find agreement among two (or a few) rather than the seventy-plus countries that currently are members of the Hague Conference. Such an approach may be particularly promising where there are conflicts with one or only a handful of countries in a discrete field of law. This aptly describes the current problem of libel tourism: the handful of instances where it has occurred have all involved lawsuits from the United Kingdom.
- Academics and Politicians
Third, and finally….[a]cademics might not be the people best suited to negotiating a solution to such entrenched differences across countries because professors do not typically have well honed political skills. Because politicians and diplomats generally have superior political skills, they perhaps should play a more prominent role in settling on an acceptable general framework that the academic experts then could be asked to operationalize. To be sure, academics still likely would have to be involved in the first stage of framework articulation because the choice among competing frameworks itself is quite technical. For the same reason, politicians or diplomats would have to invest significant time to master the issues if they are to meaningfully negotiate.
Whether such judgments should be enforced is a policy decision, and a wide range of foreign policy approaches conclude that some (perhaps most) Un-American judgments should be enforced.
The political branches are better suited than courts, on institutional and democratic grounds, to decide which Un-American judgments should be enforced. The SPEECH Act, however, demonstrates the dangers of formulating policies that directly affect other countries in the purely domestic institutional context of statute making. Rather, such decisions are best made in a setting in which all affected countries are present so that competing interests can be aired and differences can be negotiated. The Hague Conference’s past failure to adopt a convention regarding foreign judgments does not mean that future agreement is not possible. An array of alternative approaches to that taken by the Hague Conference could be taken to negotiating a future agreement concerning the enforceability of foreign defamation judgments.
“The SPEECH Act…demonstrates the dangers of formulating policies that directly affect other countries in the purely domestic institutional context…[S]uch decisions are best made in a setting in which all affected countries are present so that competing interests can be aired and differences can be negotiated.”
published Tuesday Feb 14, 2017