Hon. Patrick Leahy, Chairman
Committee on the Judiciary
United States Senate
224 Dirksen Building
Washington, DC 20510
Dear Mr. Chairman:
On behalf of the more than 65,000 members of the American Library Association (ALA), I want to thank you for convening today’s hearing on the threat posed to First Amendment rights by the practice known as “libel tourism.”
As you know, “libel tourism” refers to the practice of filing libel suits against U.S. authors and publishers in foreign jurisdictions where the law favors the plaintiff and where the plaintiff is likely to prevail. Such suits seek to punish and intimidate United States authors and publishers whose speech is otherwise protected by the First Amendment. These lawsuits effectively chill free expression and undermine our First Amendment rights in this country.
Based upon its longstanding commitment to the First Amendment and the right to free expression, ALA would like to express its concern about the negative impact of these foreign lawsuits on authors, journalists and publishers, as well as the threat to library users’ right to obtain and read the works placed under threat by libel tourism – a chilling effect that extends to all Americans’ right to read.
There are numerous examples of these libel lawsuits. One of the most notable cases is the libel lawsuit filed in England by Saudi businessman Khalid Salim bin Mahfouz against U.S. author and terrorism expert, Dr. Rachel Ehrenfeld. Even though Ehrenfeld’s book, Funding Evil: How Terrorism is Financed and How to Stop It had never been published or promoted in Britain and was published in the United States solely for an American audience, the British court awarded Mahfouz legal fees and substantial damages and ordered that the book not be further distributed in the United Kingdom.
In another case, two American academics, Robert O. Collins and J. Millard Burr, were forced to stand by and watch as their book on terror funding, Alms for Jihad, was pulped by the Cambridge University Press (CUP). CUP pulped the books in order to settle another libel lawsuit filed by Khalid Salim bin Mahfouz. This particular lawsuit reached directly into American libraries when CUP asked libraries to remove the books from their shelves and return the books to CUP so that they could be pulped.
The global reach of the Internet means that authors, publishers and journalists can be threatened by libel tourism from any place in the world. This is not a threat just for traditionally successful authors and larger publishers but also for American journalists across the world as well as “little” authors of blogs, individual online publishers and even libraries that also publish Internet content. (For the purposes of this discussion, ALA is using the term “author” as the creator of any type of traditionally printed/published or online publication. This includes publishers and all types of authors including those who post blogs, self-publish or post online materials.)
ALA sees common ground among stakeholders in this libel tourism debate. We all want to protect the First Amendment rights of our authors and assure that foreign governments and interests cannot compromise our right to free expression and stifle the free exchange of ideas and information assured by the First Amendment. Any successful legislation should contain the following key principles:
Authors should not have to go outside of this country to defend their rights;
There must be a prohibition in the United States against the enforcement of any foreign libel judgments that are inconsistent with the First Amendment; and
Authors should have appropriate legal tools to protect their rights to free expression.
ALA appreciates the two legislative approaches that have been offered by the Free Speech Protection Act of 2009 (S.449) and H.R. 2765. There are strengths in each. Through today’s hearing your committee can address options and consider a new, approach that builds on the strengths of each bill. While ALA urges careful consideration of these options so that an international environment of litigation on top of litigation is avoided, we encourage you to add two of the provisions proposed by the American Association of Publishers into H.R. 2765:
Allow U.S. authors to seek declaratory relief in federal court upon the rendering of a foreign libel judgment concerning speech published and primarily disseminated in the United States; and,
Assure that federal courts can find a foreign libel judgment to be non-recognizable and non-enforceable if it is inconsistent with the First Amendment or if the exercise of jurisdiction by the foreign court did not comport with U.S. constitutional standards of due process.
As you consider these various options, know that ALA is ready to work with you and others to protect our First Amendment rights by assuring that authors have the right to free expression and that all Americans have the right to read.
Thank you for this opportunity to comment and submit this letter for the public record of this hearing. The work of your committee is welcomed and much appreciated.
Sincerely,
Lynne E. Bradley, Director
ALA Office of Government Relations
Office of Government Relations
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ALA American Library Association