Additional View To The Senate Judiciary Committee Senate Report 111-224, The Speech Act

By Government Printing Office | by Senator Jon Kyl (R-AZ)
Monday, July 19th, 2010 @ 5:18PM

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VII. ADDITIONAL VIEWS

ADDITIONAL VIEWS OF SENATOR KYL

The complementary freedoms of speech and the press enshrined by our founding fathers in the First Amendment are cornerstones of American society. As Thomas Jefferson famously said, ‘‘Our liberty cannot be guarded but by the freedom of the press, nor that be limited without danger of losing it.’’ The importance of these freedoms has not diminished with time.

Regrettably, many other countries place lesser value on free expression and do not provide the strong legal protection for speech and the press that exists in the United States. These nations’ judicial systems have, in many instances, become home to a practice known as ‘‘libel tourism,’’ which occurs when an individual brings a libel or defamation suit against an American in a country with less protective free speech laws. Plaintiffs are increasingly engaging in global forum shopping in an effort to silence journalists, authors, publishers, and others who are merely exercising their First Amendment rights.

There can be no doubt that American citizens’ rights of free expression are being abridged by this practice. Indeed, some Americans are falling victim to an international race to the bottom—they are able to write or publish only material that would be allowed in countries with the weakest free speech protections.

Although libel tourism conflicts with American values, it has proven to be an effective way to silence criticism. Several high profile cases illustrate how libel tourism stifles free speech, perhaps none better known than the case of Rachel Ehrenfeld. In 2003, Dr. Ehrenfeld published Funding Evil: How Terrorism is Financed and How to Stop It, which detailed how Saudi billionaire Khalid bin Mahfouz financed terrorism. In response, bin Mahfouz and two members of his family filed suit against Dr. Ehrenfeld in Britain to take advantage of that country’s expansive libel laws. Despite the fact that neither the plaintiff nor the defendant was a British citizen, the courts permitted the case. Dr. Ehrenfeld refused to acknowledge the jurisdiction of the British court and chose not to defend the action. The British court issued a default judgment and ordered Dr. Ehrenfeld to pay each plaintiff £10,000 (and their accompanying legal fees), apologize, and destroy existing copies of her book.

Dr. Ehrenfeld was not bin Mahfouz’s only victim. Reports indicate he has sued or threatened suit in Britain at least 33 times in order to silence those who have accused him of knowingly funding terrorism. He has taken similar legal actions in Belgium, France and Switzerland.

The record is clear that libel judgments can lead to the financial ruin of authors and severely restrict their ability to publish in the future. Moreover, the mere prospect of a meritless foreign libel suit can chill speech by deterring the publication of books and articles that may subject the author to financial loss and reputational harm.

Libel tourism also affects publishers. In 1997, Russian oligarch Boris Berezovsky sued Forbes magazine in a British court for publishing an article accusing him of substantial illegal activities and ties to organized crime. Rather than engage in a prolonged legal battle, Forbes reportedly settled with Mr. Berezovsky. Subsequently, Brazil issued a warrant for Mr. Berezovsky’s arrest on charges of fraud and money laundering.

Several states including New York, Illinois, California and Florida have taken action to prevent their citizens from suffering the penalties of foreign libel judgments; however, Federal action is necessary to ensure that all Americans are protected by the rights they are afforded under U.S. law.

This bill takes important steps toward achieving this goal. First, the bill would protect U.S. citizens by barring the enforcement of baseless foreign libel judgments in the United States. It would also permit U.S. citizens targeted by foreign libel judgments to seek and obtain a declaratory judgment in U.S. court that a foreign libel judgment is repugnant to the Constitution or laws of the United States. This will help U.S. victims of libel tourism clear their names. Because a libel judgment can prevent an author from publishing in the future, this section is critical to protecting Americans from the destructive effects of libel tourism.

Finally, the bill takes an initial step toward making practitioners of libel tourism financially responsible for their actions. Specifically, the bill would allow Americans to recover attorney’s fees incurred defending themselves against efforts to enforce a foreign libel judgment’s enforcement in the United States.

But this bill will not, standing alone, eliminate the harm caused to Americans by baseless foreign libel lawsuits. After all, many plaintiffs never seek to enforce their judgments in the United States; Bin Mahfouz, for example, was content to deter publishers from distributing books overseas. And this law does not provide any recourse to Americans who have had foreign assets attached by a foreign court.

We believe that the Congress needs to pass broader measures that permit U.S. citizens accused of libel in foreign courts to force their accusers to pay for legal fees incurred abroad and, in certain cases, additional damages. Libel tourism will continue to pose problems for Americans until those who bring foreign libel lawsuits are faced with the same kinds of financial risks they seek to inflict on others.

We support this bill as a good first step toward addressing an important problem, but there is more that can, and should, be done. We look forward to working on additional measures to protect Americans from efforts to infringe on their free speech rights.

JON KYL.

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Categories: Free Speech & Libel Tourism, Supporting Free Speech