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Senate Moves Unanimously to Protect Free Speech

July 26th 2010

Politics - Constution wFreedom of Speech

In a rare show of unanimity, the United States Senate approved legislation last week that would prevent the domestic enforcement of foreign libel judgments that do not meet American standards of due process and free speech protection.

The Securing the Protection of our Enduring and Established Constitutional Heritage Act, or SPEECH Act (S. 3518 ) was introduced by Senators Patrick Leahy (D-VT) and Jeff Sessions (R-AL), and co-sponsored by Senators Charles Schumer (D-NY), Joseph Lieberman (ID-CT), and Arlen Specter (D-PA).
The SPEECH Act targets the growing phenomenon of libel tourism, in which wealthy foreign plaintiffs exploit claimant-friendly libel laws abroad to sue and silence American researchers, journalists, bloggers, and others for statements published in the United States. After obtaining a favorable verdict, “libel tourists” sometimes seek enforcement of the judgment in the United States in order to collect damages.

The pro-plaintiff tilt in foreign libel laws is substantial, standing in stark contrast to First Amendment protections for freedom of expression. In the United Kingdom—known as the “libel tourism capital of the world”—a defamation defendant bears the burden of proving that the statement sued upon is true, and truth is not an absolute defense to liability. In states such as Brazil and Germany, plaintiffs may sue criminally.

Many foreign courts take may take jurisdiction over a libel case even where the defendant author has little or no ties to the country, increasing the risk of such suits to authors and publishers.
The incidence of libel tourism increased in the aftermath of the 9/11 attacks, propelled by an onslaught of lawsuits by Saudi and Gulf plaintiffs suing to conceal or discredit publications indicating that they had links to terrorism. The dangers of libel tourism are well documented and widely known. In a 2008 study of Britain’s implementation of the International Covenant on Civil and Political Rights, the United Nations Human Rights Commission noted that the country’s libel laws “discourage[d] critical media reporting on matters of serious public interest, adversely affect[ed] the ability of scholars and journalists to publish their work,” and “affect[ed] freedom of expression worldwide on matters of valid public interest.”

To counter the effect of libel tourism on national security, science, and other areas, the SPEECH Act allows American authors to sue for declaratory judgment to clear their names in instances where a foreign judgment “undermines the first amendment.” The winning author is also provided with legal fees, shifting the financial burden of the litigation away from the writer.
Speaking at the vote on the SPEECH Act, Senator Leahy lauded its passage as an “important step” in enhancing American free speech protections. 
“The freedoms of speech and the press are cornerstones of our democracy,” he said. “While we cannot legislate changes to foreign law that are chilling protected speech in our country, we can ensure that our courts do not become a tool to uphold foreign libel judgments that undermine American First Amendment or due process rights.” He added, “This bill will allow American writers to clear their names when they are improperly found by a foreign court to have committed libel,” said Senator Sessions. The SPEECH Act “is a needed first step to ensure that weak free-speech protections and abusive legal practices in foreign countries do not prevent Americans from fully exercising their constitutional right to speak and debate freely.”

Based on New York State's “Libel Terrorism Protection Act” (also known as “Rachel's Law“), the SPEECH Act marks the culmination of a national campaign spearheaded by Rachel Ehrenfeld, the director of the New York-based American Center for Democracy. A scholar and author, Ehrenfeld became a leading advocate for free speech following her own experience with libel tourism.

In 2003, Ehrenfeld published Funding Evil: How Terrorism is Financed and How to Stop It, a book in which she identified and mapped global sources of terror funding. As part of her research, she asserted that Saudi billionaire Khalid bin Mahfouz funded al-Qaeda, Hamas and other terrorist organizations. Mahfouz sued her for libel in London, a tactic he ultimately used to bully more than 40 authors publishers into apologies, retractions, and fines for similar revelations.

Ehrenfeld refused to acknowledge the British court’s jurisdiction over her as she did not live in England, nor was her book published or marketed there. The English court ruled against her by default, ordering her to pay a hefty fine, apologize, retract her statements, and pay Mahfouz’s substantial legal fees. When Ehrenfeld countersued Mahfouz in the United States for a declaratory judgment to prevent domestic enforcement of the judgment against her on First Amendment grounds, the New York courts could not assert jurisdiction over Mahfouz and therefore could not hear the case.

Ehrenfeld appealed to the New York Legislature, which within two months of the case dismissal, enacted the Libel Terrorism Protection Act, enabling courts to take jurisdiction over foreign defamation plaintiffs that seek enforcement of their judgments in New York. Since 2008, Rachel’s Law analogs have passed in Illinois, California, Florida, Maryland, Utah, and Tennessee, and are pending in several other states as well.

Ehrenfeld’s efforts attracted broad-based support in the writing and publishing communities, which have backed successive efforts to pass a federal bill that would extend protections against libel tourism nationally. In May 2008, Reps. Peter King (R-NY) and Steve Cohen (D-TN), proposed similar in the House, and Senators Arlen Specter (D-PA) Joseph Lieberman (CT), and Charles Schumer (D-NY) sponsored the Free Speech Protection in the Senate. Supporters have included The New York Times; the Washington Post; PEN America; the American Society of Independent Book Publishers; Association of American Publishers; the American Civil Liberties Union and 9/11 Families for a Secure America, among others.

Ehrenfeld said she is “delighted” that the Senate passed the SPEECH Act, “which protects all Americans in the uninhibited, robust, and wide-open manner that the First Amendment was designed to guarantee. I hope that the House will act decisively and with speed to approve this bill.”

The SPEECH Act is expected to pass the House quickly and by a large majority.

Aylana Meisel is a  Legal Fellow at the American Center for Democracy.

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