07.19.10

Senate Unanimously Passes Leahy-Sessions Bill To Prevent Enforcement Of Foreign Defamation Judgments

WASHINGTON (Monday, July 19, 2010) – The Senate Monday unanimously approved bipartisan legislation authored by Senators Patrick Leahy (D-Vt.) and Jeff Sessions (R-Ala.) to protect American authors, journalists and publishers from foreign libel lawsuits that undermine the First Amendment.  The Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act will now be sent to the House of Representatives.

“The freedoms of speech and the press are cornerstones of our democracy,” said Leahy.  “They enable vigorous debate, and an exchange of ideas that shapes our political process.  Foreign libel lawsuits are undermining this informational exchange. While we cannot legislate changes to foreign law that are chilling protected speech in our country, we can ensure that our courts do not become a tool to uphold foreign libel judgments that undermine American First Amendment or due process rights.  The SPEECH Act is an important step in putting a stop to this chilling of American free speech.”

“I am very pleased that this important bipartisan legislation has passed the Senate unanimously.  This bill will allow American writers to clear their names when they are improperly found by a foreign court to have committed libel,” said Sessions.  “It will also bar enforcement in this country of foreign libel judgments that are contrary to our Constitution and laws.  In short, 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.”

Leahy and Sessions are the chairman and ranking member, respectively, of the Senate Judiciary Committee, which unanimously approved the legislation on July 13.  The SPEECH Act provides protections from foreign libel suits for authors, journalists, and publishers, and prevents a U.S. federal court from recognizing or enforcing a foreign judgment for defamation that is inconsistent with the First Amendment.  The bill also provides a separate declaratory judgment remedy for an author or publisher who wishes to demonstrate that a foreign judgment would not be enforceable under American law, even where the foreign party has not attempted to enforce the judgment in the United States.  This provision would allow authors and publishers to clear their names, regardless of the actions of the foreign party.

Representative Steve Cohen (D-Tenn.) is the author of similar legislation (H.R. 2765), and last year worked to secure the House passage of that bill.  The Judiciary Committee adopted the Leahy-Sessions SPEECH Act as an amendment to the House-passed companion bill.  The House is expected to consider the SPEECH Act soon.  The SPEECH ACT is supported by the Reporters Committee for Freedom of the Press, the Vermont Library Association, the American Library Association, the Association of American Publishers, the American Civil Liberties Union, renowned First Amendment lawyer Floyd Abrams, former Attorney General Michael Mukasey, and the former Director of the Central Intelligence Agency, James Woolsey. 

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Statement Of Senator Patrick Leahy (D-Vt.),

Chairman, Senate Judiciary Committee,

On Passage Of

The Securing The Protection Of Our Enduring
And Established Constitutional Heritage (“SPEECH”) Act

July 19, 2010

Today the Senate will pass important, bipartisan legislation to reduce the chilling effect that foreign libel lawsuits are having on Americans’ First Amendment rights.  As the son of a printer, I consider this a matter of great national importance.  I thank Senator Sessions, the Ranking Member of the Senate Judiciary Committee, for working with me on this bill.  The Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act will ensure that American courts will not enforce foreign libel judgments from countries whose free speech protections are lower than what our Constitution affords against American journalists, authors and publishers.     

Too frequently, foreign plaintiffs bring these libel lawsuits against American writers and publishers in countries where the plaintiff or the publication lacks any significant connection to the foreign forum.  The lawsuit is brought there because of that foreign country’s weaker plaintiff-friendly libel laws.  This is known colloquially as libel tourism.  On a broad scale, libel tourism results in a race to the bottom, and can cause Americans to defer to the country with the most chilling and restrictive free speech standard, to determine what they can write or publish.  This undermines our First Amendment. 

The freedoms of speech and the press are cornerstones of our democracy.  They enable vigorous debate, and an exchange of ideas that shapes our political process.  Reporters, authors and publishers are among the primary sources of these ideas, and their ability to disseminate them through their writings is critical to our democracy.  The broad dissemination of materials through the Internet, as well as the increased number of worldwide newspapers and periodicals, has compounded the threat of libel tourism.  

This problem is well documented.  Two years ago, the United Nations’ Human Rights Committee observed that one country’s libel laws “discourage[d] critical media reporting on matters of serious public interest, adversely affect[ed] the ability of scholars and journalists to publish their work,” and “affect[ed] freedom of expression worldwide on matters of valid public interest.”  Several states have enacted legislation to combat this problem but a national response is needed.

While we cannot legislate changes to foreign laws chilling protected speech in our country, we can ensure that our courts do not become a tool to uphold foreign libel judgments that undermine American First Amendment or due process rights.  The SPEECH Act is an important step toward reducing this chilling of American free speech.

The SPEECH Act is the product of hard work and extensive negotiations on both sides of the aisle.  In this process we were mindful about principles of international comity.  Many supporters would not have written the bill in this exact way, but all recognize that our bipartisan compromise is an important step in confronting the libel tourism issue.  

The SPEECH Act is also supported by a broad cross section of stakeholders, all of whom deserve thanks for their work.  These include the Vermont Library Association, former Attorney General Michael Mukasey, the former Director of the Central Intelligence Agency, James Woolsey, the American Library Association, the Association of American Publishers, the Reporters Committee for Freedom of the Press, the American Civil Liberties Union, Net Coalition, and renowned First Amendment lawyer, Floyd Abrams.  

I would like to recognize Dr. Rachel Ehrenfeld, Director of the American Center for Democracy, who herself has been the victim of a libel suit in the United Kingdom, and has been a tremendous advocate for Congressional action in this area.

I also want to thank Senators Specter, Schumer and Lieberman for their work in raising this important issue in the Senate, and Representative Cohen for his hard work on libel tourism legislation in the House. 

I am pleased that the Senate will adopt this bipartisan legislation. I look forward to its prompt consideration and adoption by the House, and to the President signing it into law.           

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