Like resistant new strains of virus or bacteria, new threats to free expression in the U.S. appear from time to time. One such new threat is foreign libel litigation. In recent years, American writers and publishers have increasingly found themselves named as defendants in libel suits in countries lacking our First Amendment protections.
Libel plaintiffs often sue in those countries (particularly England), where the scales of law tilt in their favor. Such forum-shopping occurs even when the defendants have little or no significant contacts with the forum. This insidious and pernicious new phenomenon, which inhibits free speech in America, has been memorably dubbed “libel tourism.”
Fortunately, the medicine to at least start to treat the disease of libel tourism is now at hand. A few weeks ago, a bipartisan group of U.S. senators introduced a bill to begin to remedy the situation. Their bill has an ungainly title— the Securing the Protection of our Enduring and Established Constitutional Heritage Act—a title whose primary purpose seems to have been to create the catchy acronym, the “Speech” Act. It is a good and much needed piece of proposed legislation, and it should be passed and signed into law as soon as possible.
The proposed Speech Act has three main features. First, the act would prevent any federal or state court in America from enforcing a foreign libel judgment unless the judgment meets our First Amendment standards.
Second, it would allow an American writer or publisher on the losing side of a foreign libel judgment to ask a federal court to declare, even before the successful libel plaintiff starts enforcement proceedings here, that the judgment is unenforceable and “repugnant” to American law if it falls short of American First Amendment protection.
Third, the act would allow a victorious plaintiff in the declaratory judgment action a “reasonable attorney’s fee.” These features, taken together, make up a powerful triple dose of medicine.
If the Speech Act bill becomes law, as it should and quickly, it will greatly alleviate the problems caused by libel tourism. Up to now, American writers and publishers who have been threatened with or lost libel suits in foreign countries with libel plaintiff-friendly laws have been seriously hurt.
Quite apart from the obvious financial cost, and defending a libel suit is not cheap, such writers and publishers are discouraged from writing further about the same subject, even if the subject is vitally important, like international terrorism. This chilling effect causes authors and journalists to avoid the danger zone, and publishers to steer clear of controversial subjects and controversial authors. The unacceptable result is that we the public are deprived of crucial information and important debate.
The Speech Act is not the first effort to cure the disease of libel tourism. It is closely modeled on a 2008 New York law that has since been virtually copied in half a dozen other states. The remedial New York law in turn only came about as an unanticipated but welcome result of private litigation.
The seminal lawsuit that sparked such reform involved a New York writer named Rachel Ehrenfeld who in 2003 published a book called “Funding Evil” about the financing of international terrorism. Some of the people mentioned in the book sued her for libel in England, even though the book was not published there. For reasons of principle and cost, Ehrenfeld chose not to defend the lawsuit in a jurisdiction that had less free speech protections than the U.S. As a result, the libel plaintiffs obtained a substantial default judgment against her.
Faced with a six-figure judgment and dwindling outlets for her work, Ehrenfeld promptly sued one of the U.K. libel plaintiffs in Manhattan federal court for the same relief given in the Speech Act bill—a declaratory judgment that the U.K. libel judgment was unenforceable. But the courts in Ehrenfeld’s case, including a ruling by New York State’s highest state court, found that they lacked jurisdiction over the U.K. libel plaintiffs. In short, Ehrenfeld lost her lawsuit.
Ehrenfeld may have lost the suit, but she won the law. The adverse decision in her case provoked the New York State Legislature into prompt action, a rare occurrence under the best of circumstances. Within five months of the courts ruling against Ehrenfeld, the New York Legislature unanimously passed the Libel Terrorism Protection Act, which was quickly signed by Governor David Paterson in April 2008. The New York law is the template for the proposed federal Speech Act.
The federal Speech Act caps Ehrenfeld’s campaign. It proves, once again, that an individual in America can use the courts to achieve needed change. It proves, once again, that the different branches of government can have a conversation with each other, that legislatures, as much or even more so than courts, have an important role to play in formulating the law. It proves, once again, that the law can respond as needed.
This new proposed federal law deserves widespread support and quick passage. We need to get this law on the books right away. We need it to treat the disease of libel tourism and to protect freedom of expression in America.
Daniel J. Kornstein of Kornstein Veisz Wexler & Pollard represented Rachel Ehrenfeld in her “libel tourism” litigation.