Federal 'Libel Tourism' Law to Nullify Anti-Free Speech Rulings

On August 10, 2010, President Barack Obama signed the Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act, meant to protect U.S. writers and speakers against “libel tourism,” a practice whereby libel plaintiffs sue Americans—and often win large damages—in countries with weaker speech protection laws than those of the United States.

Citing the growing prevalence of libel tourism and its threat to “not only suppress the free speech rights of the defendants to the suit, but inhibit other written speech that might otherwise have been written or published but for the fear of a foreign lawsuit,” the SPEECH Act, Pub. L. No. 111-223, forbids U.S. courts to recognize or enforce foreign libel judgments that are inconsistent with the free speech guarantees of the First Amendment or applicable state constitutions or laws. Under the Act, an American citizen, legal resident, legal alien, or business who loses a foreign libel suit or is prosecuted under a foreign criminal libel law can obtain an order from a federal district court that declares the foreign judgment unenforceable if it “is repugnant to the Constitution or laws of the United States.”

The Act places the “burden of establishing unenforceability” on the party requesting the declaration, and if the court finds that, despite a lower foreign standard for defamation, the person challenging the foreign libel ruling would have been found liable by the applicable American standard, then the foreign ruling can be upheld.

The Senate Judiciary Committee approved the bill on July 13, and it was approved unanimously by the U.S. Senate on July 19 and sent to the House of Representatives. The House passed its version of the bill by voice vote on July 28 and sent it to Obama.

A version of the bill was first introduced in Congress by Rep. Steve Cohen (D-Tenn.) in fall 2008, who cited the case of author Rachel Ehrenfeld as its inspiration. In 2008, the 2nd Circuit U.S. Court of Appeals ruled that Ehrenfeld, author of a book titled “Funding Evil: How Terrorism is Financed - and How to Stop It” linking Saudi billionaire Khalid bin Mahfouz to terrorist financing, could not stop bin Mahfouz from enforcing a British libel verdict against her in the United States. Ehrenfeld v. bin Mahfouz, 518 F.3d 102 (2d Cir. 2008). Illinois and New York have also passed libel tourism statutes.

For more Bulletin coverage of libel tourism and the Ehrenfeld case, see “Libel Tourism Bills Introduced in U.S. House and Senate” in the Winter 2009 issue of the Silha Bulletin, “House Passes Libel Tourism Bill; Illinois Enacts Its Own Law” in the Fall 2008 issue, “New York Law Protects Authors from Libel Tourists” in the Summer 2008 issue, “New York High Court Rules in Libel Tourism Case” in the Winter 2008 issue, and “‘Libel Tourism’ Suit Leads Publisher to Destroy Book on Terrorism Funding, Pay Damages and Apologize” in the Fall 2007 issue.

The passage of the SPEECH Act in the United States stirred ongoing concerns in the United Kingdom, where plaintiff-friendly libel laws frequently result in large judgments against defendants. AnAugust 13 Washington Post editorial said that “Libel tourists flock to London, where suits can result in judgments of millions of pounds, effectively placing some wealthy figures outside the reach of journalism because writing about them might prove too costly.”

According to an August 11 blog post by Guardian of London media critic Roy Greenslade, Jonathan Heawood, English director of free speech organization PEN, called the passage of the SPEECH Act “hugely embarrassing.” Heawood said, “English libel lawyers claim that libel tourism is not a problem, [sic] if this is the case why has President Obama just signed into law a measure to protect his citizens from our courts?” Greenslade quoted Index on Censorship editor Jo Glanville as saying that “the U.S.’s response to our libel laws has already played a key role in advancing the campaign for reform in the UK.” The Washington Post editorial reported that “all three major [U.K.] parties have declared libel reform a priority, and the British Ministry of Justice has announced it will move forward with legislation in the coming year.”

- Sara Cannon
Silha Center Staff

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This page contains a single entry by cla published on September 10, 2010 4:02 PM.

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