Revisiting Foreign Libel Law's Pernicious Impact on First Amendment Speech

Back in April, I blogged about New York's Libel Terrorism Protection Act, which bars the enforcement of foreign defamation judgments unless a New York court has found that the foreign court proceeding provided at least as much protection for freedom of speech and press in that case as would be provided by both the United States and New York Constitutions. "Libel terrorism" (a term I am not a big fan of) describes the practice of libel plaintiffs who pursue claims against American publishers in foreign courts that offer few, if any, of the protections for speech available in the United States. 

New York's Libel Terrorism Protection Act was meant to address situations like that of Rachel Ehrenfeld, who was sued for libel in the United Kingdom by Saudi banker Khalid bin Mahfouz over her book, "Funding Evil: How Terrorism is Funded and How to Stop It," which she published in New York. According to evidence in the case, a mere twenty-three copies of the book were sold in England, but that was sufficient for a U.K. court to exercise jurisdiction over Ehrenfeld. As a result of her refusal to appear or contest the court's jurisdiction, the court entered judgment against Ehrenfeld in the amount of $225,000. Ehrenfeld then sought a declaratory judgment in New York federal court stating that the U.K. judgment was not enforceable in the United States because it did not comport with the First Amendment. Punting on that issue, the federal court certified a jurisdictional question to the New York Court of Appeals, which held that New York courts did not have authority to hear Ehrenfeld's case.

After Ehrenfeld's plight became widely known, the New York legislature passed the Libel Terrorism Protection Act to give Ehrenfeld and others who are sued abroad for libel the right to obtain a declaration by New York courts that U.S. law protects their speech. Governor Patterson signed the Act into law on April 28, 2008.

In a similar effort at the federal level, Senators Arlen Specter and Joseph Lieberman have introduced the Free Speech Protection Act of 2008, which would allow a federal court to enjoin the enforcement in the United States of a foreign libel judgment if the speech at issue would not constitute defamation under U.S. law. 

Yesterday, Specter and Lieberman published an op-ed in the Wall Street Journal explaining the proposed law:

Our bill bars U.S. courts from enforcing libel judgments issued in foreign courts against U.S. residents, if the speech would not be libelous under American law. The bill also permits American authors and publishers to countersue if the material is protected by the First Amendment. If a jury finds that the foreign suit is part of a scheme to suppress free speech rights, it may award treble damages.

First Amendment scholar Floyd Abrams argues that "the values of free speech and individual reputation are both significant, and it is not surprising that different nations would place different emphasis on each." We agree. But it is not in our interest to permit the balance struck in America to be upset or circumvented by foreign courts. Our legislation would not shield those who recklessly or maliciously print false information. It would ensure that Americans are held to and protected by American standards. No more. No less. 

Apart from Specter and Lieberman's gratuitous reference at the end of their op-ed to "Islamist terror" as a justification for the federal law, this is an important issue for both traditional publishers, who are increasingly moving to online distribution, and citizen media, who already use the Internet to reach audiences all over the world, including in countries that don't have adequate free speech protections. Let's hope that Congress acts quickly on this.


Subject Area: