A Bill to Combat the Foreign Threat to Free Speech in the U.S.

Rachel Ehrenfeld, the New York author and scholar who has been battling the threat posed by libel suits filed in foreign countries over speech in the U.S. that would be fully protected by the First Amendment, has a new and important article out today on the issue.

Federal legislation to prohibit foreign entities from enforcing these absurd libel judgments in the U.S. against American citizens is currently pending in the Senate Judiciary Committee, where it has widespread support. The Senate and especially the Judiciary Committee are busy places these days, but First Amendment experts are hopeful that the bill will soon be voted out of committee and will pass as law.

Here's a statement from Sen. Patrick Leahy, the Judiciary Committee chairman, describing that proposed legislation, which was introduced by Leahy and Alabama Sen. Jeff Sessions, the ranking Republican on the Judiciary Committee.

As Leahy's statement says, the bill "prevents a U.S. federal court from recognizing or enforcing a foreign judgment for defamation that is inconsistent with the First Amendment. [to] ensure that our courts do not become a tool to uphold foreign libel judgments that undermine our First Amendment or due process rights."

Leahy added, "Over the past several years, the problem of libel tourism has grown. Today, countries whose weak libel laws impact American authors are no longer confined to a small number. England, Brazil, Australia, Indonesia and Singapore are just a few of the countries whose weak libel protections have attracted libel lawsuits against American journalists and authors. This threat to American free speech must end, and the time to act is now.

"New accounts of libel tourism lawsuits emerge every day. This is because the dissemination of materials through the Internet, as well as the increased number of worldwide newspapers and periodicals, has compounded their threat. The likelihood that a book or story will have some contact with a foreign country is simply that much higher, as is the probability that a foreign court will determine that it has a basis for asserting jurisdiction over an American author or publisher. As we heard at a recent Judiciary Committee hearing, this has a dramatic chilling effect on Americans’ free speech."

And Sessions said, "this bill is a needed first step to ensure that weak free-speech protections and abusive legal practices in foreign countries do not prevent Americans from fully exercising their constitutional right to speak and debate freely."

The bill is cosponsored by Sens. Arlen Specter (D-Pa.), Chuck Schumer (D-N.Y.) and Joe Lieberman (DI-Conn.).

This foreign threat is not just to authors and journalists who (like me) have written things in the U.S. that a foreign government would like to suppress or punish American citizens for. It also affects academics, researchers, travel reviewers, speakers and users of social network sites in the U.S.

If somebody in another country doesn't like what you say in the U.S., they can sue you in that country and try to enforce the judgment in the U.S. This kind of action has become much more prevalent in recent years, as the Internet provides wide (and perpetual) dissemination of speech made in the U.S.

(In my own case, a lawsuit in Brazil claims that I somehow defamed the entire nation of Brazil in my reporting and commentary on Brazilian authorities coverup of, and scapegoating two American pilots for, a horrific 2006 mid-air collision at 37,000 feet over the Amazon. I was one of the seven survivors on an American business jet that was involved in the collision, in which all 154 on a Brazilian 737 airliner were killed. My reporting on the case has always been accurate, and the Brazilian lawsuit makes false and absurd claims that I insulted the nation by describing Brazil as the "idiot of all idiots" -- which I never said or wrote but which, even if I had, would not constitute libel in any court in the U.S.)

These kinds of lawsuits, over speech in the U.S. that would not ever be considered libel under U.S. law, pose the most direct, dire threat to free speech in my lifetime.

The federal government needs to act, as some individual states already have, to prevent this outrage. The states that have so far passed their own laws to prevent enforcement of spurious foreign libel judgments are New York, Illinois, Florida, California, Utah, Tennessee, and Maryland. A similar law passed the Arizona state Senate 30-0 in the winter, but has been unaccountably sidetracked in the state House since then.

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