Free Speech and Bananas: The First Amendment Stands

[Above: The Legacy 600 business jet after it made an emergency landing at an Amazon airstrip on Sept. 29, 2006]

[UPDATE AUG. 2 -- By the way, until the president signs this bill into law, I wish the media would stop cluelessly presenting this issue as simply a problem with the libel laws in the UK.]

A serious reporter absolutely hates to be the subject of any news story. Trust me, there is no percentage in it at all, unless you like seeing your face in print or on television -- which I do not.

So I am very happy to report that my own role in the Brazil/free speech/libel-tourism saga appears to be nearing its end. And not for nothing, but this article about me by Blake Fleetwood in the Huffington Post the other day is actually illustrated by a photograph of the beauteous Cameron Diaz, who plays but a peripheral part in the issue at hand. What a delight to see her there!

The overriding issue for me centers on one incident. On Sept. 29, 2006, I and six others on a business jet inexplicably survived a horrific mid-air collision at 37,000 feet over the central Amazon with a Brazilian 737 airliner that went down in the jungle, killing all 154 aboard. Here's the story I wrote about the crash in the New York Times on the day I got home from Brazil. (At the time, by the way, the official death toll was incorrectly given by the Brazilians as 155.)

That story, and the reader comments attached to it online, and most especially a series of hard-hitting follow-up stories and commentaries I subsequently wrote in a personal blog about the incident (that blog has been inactive since January 2008) got me sued in Brazil on the astonishing charge that I had insulted the entire nation by my reporting on the incident.

The lawsuit papers were served to me at my former home in New Jersey by an errand boy (who described himself as an official with the New Jersey State Constable Department, an entity that does not exist), acting on behalf of the Brazilian court, which had hired a New York law firm to handle the case against me.

Despite the ongoing death threats and the lawsuit, the issue for me went beyond personal and financial peril.

As is no longer in any dispute, the Amazon crash was caused by egregious operational and systemic errors by Brazilian air traffic control, which is a part of the Brazilian Air Force. As I reported on this in the months after the crash, while arguing for the Brazilians to release the two American pilots being unlawfully detained without charge in Rio, I became a lightening rod for virulent anti-Americanism in the Brazilian media. The Brazilian media, known for its emotionalism and xenophobia, fanned anti-American flames, while abetting the Brazilian government in its attempt to scapegoat the two American pilots of the business jet for the catastrophe.

To make a long story short: The personal issue quickly became, to me, one of freedom of speech. I was being sued, and threatened with arrest in international travel, on false and patently ridiculous charges. Among those false charges was that, in writing about this incident in the United States, for a U.S. readership, I called the Brazilian authorities "most idiot of all idiots," and, furthermore, described the nation of Brazil as a "banana."

Now, I have been making a living as a writer for over 40 years now. If I choose to be insulting, I think I can probably come up with something better than that, and something that more closely approximates English-language rhetoric. I mean, even "ass-hat" is better than "banana."

But never mind that. What struck me like a hammer upside the head was my inability, as this matter progressed, to interest some of the major U.S. journalistic organizations in the issue. I mean, here was a case where a U.S. citizen was being sued on spurious charges in a foreign country for alleged comments made within the U.S. -- comments that would have been laughed out of any U.S. court had some lawyer tried to present them as evidence of libel or defamation. Here, in short, was a fundamental First Amendment issue.

Not only that, but the basic contention of the lawsuit was that my comments and reporting within the U.S. were actionable in the foreign country and enforceable in the U.S. -- on the basis that I had offended the sensibilities of an entire foreign nation, and not a person.

If this line of reasoning were to stand, no American could safely write or utter a statement that some foreign country -- think Iran, Syria, Saudi Arabia, North Korea and on and on and on -- might find objectionable. Because, you see, anything you publish or even utter publicly say here in the U.S. becomes accessible on the Internet. It's called the World Wide Web, obviously.

My own situation aside -- that dubious precedent, to me, was the most basic threat to free speech in this country in my lifetime. It simply could not stand.

But where were my colleagues in the profession of journalism? The best stood up. The New York Times, while agreeing with my position that defending this lawsuit directly in Brazil could only lend credence to an absurdity, was in my corner from Day One and was prepared to defend me in the U.S. once the Brazilians got their judgment (it's imminent, I am told) and tried to enforce it in an American court. That despite the fact that I am not an employee, but rather an independent contractor who has written freelance columns every week for 14 years for the Times.

Also, the now sadly defunct journalism trade magazine Editor & Publisher, and its stand-up editor Greg Mitchell, also weighed in on the matter. As did the international Committee to Protect Journalists. The very important Reporters Committee for Freedom of the Press also came in with both feet. The American Center for Democracy did, too.

Missing in action, though, were some of the windbags of kept journalism. The amusingly oversubsidized Poynter Institute, which I regard as the Ding Dong School of journalism academe, went into deep cover and refused to address the issue. So did the once important, but now irrelevant, Columbia Journalism Review (Motto: "Strong Press, Strong Democracy") -- whose intrepid editor, one Mike Hoyt, didn't even bother to respond to e-mails and phone calls.

This dangerous threat is now about to be eliminated for all American journalists, bloggers, researchers, authors and even users of social media, with a stroke of President Obama's pen, when he signs the SPEECH Act, recently overwhelmingly passed in Congress, which will prohibit enforcement in the U.S. of foreign libel judgments that are repugnant to the U.S. First Amendment.

Here is the text of the SPEECH Act that's about to become federal law.

The indefatigable Rachel Ehrenfeld deserves most of the credit for this. A diligent working group of First Amendment attorneys and legislative aides on Capitol Hill performed brilliantly in drafting the bill. The Senate Judiciary Committee, among others, showed how a democracy works at its finest.

Here's another link focusing on Rachel Ehrenfeld, a true free-speech hero.

And so the First Amendment stands. Would someone please inform those few timid worthies in the journalism establishment, I mean the ones who chose to sit the fight out quietly, that it has now been won, honestly and well, by those who chose to stand and fight?

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