Protecting American Free Speech
By The Hill's Congress Blog | by Senators Patrick Leahy (D-Vt.) and Jeff Sessions (R-Ala.)
Tuesday, August 3rd, 2010 @ 10:24PM
Although Washington is often mired in partisan political battles, there are some issues on which Democrats and Republicans in Congress can agree — and where they can work together in unison. One of these is our nation’s tradition of freedom of speech. Thanks to strong, bipartisan cooperation, an important bill to protect free speech is now set to become law.
The SPEECH Act (Securing the Protection of our Enduring and Established Constitutional Heritage) will protect Americans’ free-speech rights from the chilling effect of foreign libel lawsuits. The Act will ensure that American courts cannot be used to enforce foreign libel judgments against American journalists, authors and publishers if those judgments undermine Americans’ First Amendment rights.
For too long, American writers and publishers have been taken to court in countries with speech protections that are weaker than what our First Amendment affords. Moreover, these lawsuits often are brought in the courts of countries that lack any substantial connection to the speech or publisher, and that are selected by the plaintiff only because of that country’s weak free-speech standards. This is known as libel tourism.
As a result of libel tourism, American reporters, authors and publishers are potentially subject to these countries’ lower speech protections with every newspaper or book that they publish. Growing accessibility to the Internet has compounded the problem. What we are seeing today is a race to the bottom, where Americans feel pressured to defer to those countries with the weakest free-speech standards when determining what they can write or publish. And as a result, the free exchange of ideas on issues of national importance is restricted. The full magnitude of the problem was brought to light by the efforts of Dr. Rachel Ehrenfeld, who fought to protect herself from libel tourism. The Senate Judiciary Committee held a hearing earlier this year on this very topic, and heard testimony that even the threat of such suits has chilled Americans’ protected speech.
Our bipartisan SPEECH Act addresses this problem and ensures that American writers and publishers will be protected from domestic enforcement of foreign libel judgments that undermine our constitutional right to free speech. The SPEECH Act will prevent an American court from enforcing a foreign judgment that is inconsistent with the First Amendment or our due process requirements. But authors’ reputations can be still be damaged by a foreign judgment even when the plaintiff does not try to enforce it in the United States. To address this problem, the SPEECH act also allows an American writer to clear his name by obtaining a declaratory judgment that a foreign libel judgment is contrary to our First Amendment or the due process clause of our Constitution.
We should emphasize that the SPEECH Act is not targeted at any particular country or the laws of any particular country. It focuses solely on the use of American courts. This bill is the product of extensive negotiations among Democrats and Republicans in both the Senate and the House, and the hard work of Congressman Steve Cohen, resulting in unanimous passage in both chambers. It should serve as an example of what meaningful efforts to reach compromise can accomplish on behalf of the American people. Some of its supporters would not have written the bill exactly as it is, but all recognize that this bipartisan compromise is an important step toward confronting the problem of libel tourism.
The First Amendment’s freedoms of speech and press are a cornerstone of our democracy. These freedoms enable vigorous debate and an exchange of ideas that shapes our political process. When signed into law, the SPEECH Act will help ensure that Americans’ access to this information is not impeded.
Sen. Patrick Leahy (D-Vt.) is the chairman of the Senate Judiciary Committee. Sen. Jeff Sessions (R-Ala.) is the ranking member of the Senate Judiciary Committee.