Supporting The Passage Of A Modified Version Of The Free Speech Protection Act, S.449
By Association of American Publishers - Letter to the Senate Judiciary Committee | by Allan R. Adler, Vice President, Government & Legal Affairs
Tuesday, February 23rd, 2010 @ 5:43PM
Hon. Patrick Leahy, Chairman
Committee on the Judiciary
United States Senate
224 Dirksen Building
Washington, DC 20510
Dear Mr. Chairman:
The more than 300 U.S. publishing companies that comprise the Association of American Publishers (AAP) are profoundly grateful to you for convening today’s hearings and focusing the attention of the Judiciary Committee and the Senate on the problem of “libel tourism.” While high-profile examples of libel tourism directed at U.S. citizens, such as the Rachel Ehrenfeld case, involve judgments obtained in England by Saudis implicated in the funding of terrorism, the threat is wider and more insidious. The sale of books over the Internet exposes U.S. authors and publishers to the danger of being sued almost anywhere in the world.
The cynical exploitation of plaintiff-friendly foreign libel laws as a weapon to silence American authors and prevent them from speaking out on issues of public concern represents a serious threat not only to AAP’s members but to all Americans.
H.R. 2765, passed by the House last year, is good as far as it goes, but it does not go far enough. In merely codifying the rulings of a number of American courts that have held foreign defamation judgments to be unenforceable if they are inconsistent with the First Amendment, H.R. 2765 would ensure that federal courts properly apply comity analysis to foreign libel judgments but it fails to give American authors and publishers the ability to obtain declaratory relief from a U.S. court after a meritless foreign libel judgment has been rendered against them. As things stand now, the foreign litigant need not move to enforce the judgment here; he can just sit back and allow it to exert its chilling effect in perpetuity. H.R. 2765 would do nothing to change that.
We support passage of a modified version of the Free Speech Protection Act—S.449—currently pending before this Committee. Specifically, American publishers are seeking a bill that would:
Allow a U.S. author 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;
Allow federal courts to exercise personal jurisdiction over a prevailing foreign libel plaintiff to the fullest extent consistent with constitutional due process;
Direct federal courts to 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;
Provide for the recovery of all attorney’s fees and costs incurred by the U.S. author or publisher as a result of the foreign libel judgment;
Allow for an award of compensatory damages if it can be shown that the foreign litigation was undertaken as part of a pattern to deprive the U.S. speaker of his First Amendment rights.
Mr. Chairman, there is a growing recognition that the robust public discourse and precious free speech rights guaranteed by the First Amendment are being seriously threatened by libel tourism. American authors and publishers find themselves increasingly in harm’s way as a result of Internet book sales and Internet speech. We urge the Judiciary Committee to act quickly and decisively to give them the legal tools to fight back.
Allan R. Adler
Vice President, Government & Legal Affairs
Association of American Publishers, Inc.
50 F Street N.W., 4th Fl.
Washington D.C. 20001
Telephone (202) 347-3375
Fax (202) 347-3690