Congress is on the verge of making sure that your speech remains free, even if somebody hears it in London.
The problem of “libel tourism” – when plaintiffs cherry-pick foreign courts that are not bound by America’s robust First Amendment protections – came to light in recent years when American author Rachel Ehrenfeld wrote a book about terrorism financing that sold 23 copies in England. That handful of books was enough for a Saudi businessman to get his weak defamation case against Ehrenfeld into a British court. England has unfair libel laws, which force the defendant to prove the truth of a statement rather than the plaintiff to prove its falsity – the opposite of American libel laws. Knowing this, Ehrenfeld refused to show up for the trial, and the court entered a large judgment (30,000 British pounds, currently $45,900 U.S.) against her. The New York legislature did not think Ehrenfeld and other writers should have to wait in fear for the collection of potentially ruinous foreign judgments, so it passed a law saying its courts would not respect foreign libel judgments that don’t pass First Amendment muster.
Doesn’t sound like it could happen to you? Many of us take for granted that the things we post on Twitter, Facebook or our blogs are protected by the First Amendment. But if even a few people in England (or any other country that doesn’t think as highly of free speech as we do) read your words online, there is a possibility that a wealthy plaintiff who is offended by what you have written will find a court willing to take the case.
The Senate on Monday passed the SPEECH Act, which fights back against libel tourism by ensuring that our own federal courts will not play a part in enforcing sham defamation judgments. The House of Representatives, which passed a slightly different version of the bill last year, will reconsider it before it can go to President Barack Obama’s desk.
This issue is not rooted in American arrogance or paranoia. The United Nations Human Rights Committee has recommended that the UK bring its libel laws in line with international standards, specifically citing the risk of libel tourism. Earlier this year, an English science writer who dared to criticize the chiropractic industry finally prevailed in a lawsuit brought by a professional association – but only after a drawn-out and expensive legal battle. The judges who handed him the victory on appeal admitted that the suit had caused a “chilling effect on public debate.” British lawmakers have been discussing the need for defamation reform, but there is no indication that meaningful changes are imminent.
The reluctance of England and other countries to change their laws to protect free speech makes it necessary for Congress to act. Under the SPEECH Act, which the ACLU supports, federal courts will not be allowed to recognize a foreign defamation judgment unless the law of the foreign court provided First Amendment-level protections or the defendant would have been found liable even with First Amendment protections.
The Senate stood up for free speech with its bipartisan effort to prevent foreign meddling with First Amendment rights. The House of Representatives should move quickly to finalize this important legislation.