Statement Of Senator Patrick Leahy (D-Vt.), Chairman, Senate Judiciary Committee, On Introduction Of The Securing The Protection Of Our Enduring And Established Constitutional Heritage ("Speech")

By Senator Patrick Leahy (D-Vt.)
Tuesday, June 22nd, 2010 @ 9:06PM

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Two years ago the United Nations’ Human Rights Committee observed a problem that “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.” That problem was “libel tourism,” a troubling trend of foreign lawsuits that have stifled Americans’ First Amendment rights. Today, I am introducing legislation to put a stop to this harmful trend.

The First Amendment is a cornerstone of American democracy. Freedom of speech and the press enable vigorous debate over issues of national importance, and enable an exchange of ideas that shapes our political process. Authors, reporters and publishers are primary sources of this information, and their ability to disseminate their writings is critical to our democracy.

Over recent years, American authors, reporters and publishers have fallen victim to libel lawsuits in countries with significantly weaker free speech protections that what our First Amendment affords. In many cases, the foreign plaintiff sought out that country, where there is no regard for freedom of the press, so that they could easily prevail. These suits occur regardless of whether the plaintiff or the publication has significant connections to the foreign forum. On a broad scale, this results in a race to the bottom, and causes U.S. persons to defer to the country with the most chilling and restrictive free speech standard, to determine what they can or cannot write or publish. This is libel tourism. As the son of a printer, I consider this a matter of great national importance.

Today, I am introducing with Senators Sessions, Specter, Schumer and Lieberman legislation that will ensure American authors, journalists and publishers are shielded from the chilling effects of libel tourism. This legislation guarantees that a foreign defamation judgment cannot be enforced in the United States if that country’s libel standards are inconsistent with American law. Our legislation also provides American victims of unconstitutional libel suits the opportunity to clear their name by filing for a declaratory judgment in an American court.

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.

The impact and extreme nature of these foreign libel lawsuits is best understood through examples. The most well known is the case of American journalist Rachel Ehrenfeld, who wrote a book about the financiers of the 9/11 attacks. She did not market her book in England yet was sued for libel there by a Saudi businessman she linked to terrorism. The content of her publication would have been protected under our laws, but a British court applying its laws issued a multimillion dollar default judgment against her. Today, Ms. Ehrenfeld continues to experience reluctance from American publishers who fear that plaintiffs will target her and bring another libel action against anything she writes on the subject of terrorism financing.

The scientific community has also been affected by libel tourism. An article last year in New Scientist magazine notes that now “Challenging the scientific validity of a product or claim can be fraught with danger. . . [because] such challenges are leaving scientists and science writers [to] fac[e] an expensive libel action before the English high court. Many individuals and publications have been threatened with libel actions, and some have had proceedings launched against them. Many more writers have had their work edited before publication to avoid any risk of such legal action.” Publications exposing financial improprieties, consumer protection issues, medical malpractice, and sexual abuse have all fallen victim to libel tourism lawsuits around the world.

Even Roman Polanski sued Vanity Fair for libel in England. Mr. Polanski, a fugitive from justice who fled America after being convicted of sexually abusing a young girl, filed the suit in 2004 He has fought extradition while living in Europe. The Vanity Fair article recounted a story of his alleged aggressive sexual advances made just after his wife was murdered, and portrayed him as being insensitive to her death. The article was written in the U.S., edited in the U.S., and primarily sold in the U.S., but the British court claimed jurisdiction, and ruled in favor of Mr. Polanski.

Foreign libel judgments impact American authorsメ livelihood, credibility and employment potential. They also have the potential to limit the types of books and articles that talented and reputable authors can get published in the future. But most importantly, their suppression limits the information that Americans have a constitutional right to access. Journalists writing about issues of national security and safety should not be chilled. These lawsuits are designed to stifle the dissemination of that information in both the United States and the world. Journalists willing to investigate and write about such important issues deserve protection.

I am encouraged that some countries have taken steps to strengthen their libel protections and jurisdictional requirements in the wake of these lawsuits, but that is not enough. As one country tightens its libel protections, another may just emerge as the next-best-available forum of choice for libel plaintiffs willing to travel to file suit.

I want to thank the ranking member of the Judiciary Committee, Senator Sessions, for working with me on this legislation. I also want to thank Senators Schumer and Specter, for their support in moving toward a legislative compromise on this important issue. Their bills provided a valuable basis from which the bipartisan compromise that we are introducing today emerged.

We cannot legislate changes to foreign law that are chilling protected speech in our country. What we can do, however, is ensure that our courts do not become a tool to uphold foreign libel judgments that undermine our First Amendment or due process rights. We can also provide American authors and reporters the ability to clear their name in our courts.

I hope all Senators will support our bipartisan effort to pass this important legislation this summer to protect the free speech rights of all Americans.

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Categories: Free Speech & Libel Tourism