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

    by David Ardia
    July 15, 2008

    Back in April, I blogged over at the Citizen Media Law Project 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
    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

    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.

    Tagged: cmlp first amendment libel

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