The Speech Act, A View From Abroad

By Media Law Resource Center, Inc. | by Harry Melkonian
Saturday, August 11th, 2012 @ 9:19PM

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The SPEECH Act [1] was enacted in 2010 and was intended to protect American authors and publishers from the risk of US judicial enforcement of defamation judgments rendered in less media-friendly jurisdictions – most often, England. In a nutshell, the SPEECH Act requires that American courts deny recognition or enforcement to any defamation judgment obtained outside of the US unless the law applied by the foreign court ‘provided at least as much protection for freedom of speech and press in that case as would be provided by the first amendment to the Constitution of the US’ and by the law of the state where enforcement was being pursued.[2]

The SPEECH Act also uses the threat of attorneys’ fee awards to deter enforcement proceedings by successful defamation claimants. If the party seeking judicial recognition of the foreign judgment fails in the attempt, attorneys’ fees are awarded to the defendant. However, if the foreign decree is granted recognition by the American court, the prevailing party does not recover fees.[3] Only defendants can recover fees. The legislation also provides for relatively innocuous declaratory relief which does not really change existing law.[4]

The SPEECH Act is rather like curing the common cold with massive doses of radiation – it might work but the long-term consequences exceed the risks from a bout of coughing and sneezing. Initially, it needs to be noted that the relative handful of American decisions dealing with enforcement of foreign defamation judgments have uniformly denied recognition. Furthermore, in cases in which plaintiffs have asked that American trial courts apply foreign defamation laws to local proceedings, the courts have refused to do so. Under these circumstances, it might be asked what is the harm of legislation that does not seem to change anything and may even add some certainty to an issue? The appropriate response is that the legislation is flawed in that it permanently enshrines questionable US case-law, fails to recognize the subtleties of the laws of comity among nations and conflict of laws, and further institutionalizes American parochialism within the global community.[5] Fundamentally, the problem with the statute is that it reads as if one hundred years of private international law and comity among nations did not exist.

One of the virtues of existing law is that it recognises the difficulty of comparing law among different legal systems and only seeks approximations. The SPEECH Act denies recognition to foreign judgments unless the judgment creditor can prove that the foreign law meets or exceeds freedom of speech protections afforded by the US First Amendment. However, the First Amendment, as interpreted by the US Supreme Court, is a hodgepodge of doctrinal law that is difficult to reconcile with free speech theory and, consequently it would be well-nigh impossible to find any other system of law that meets the ‘equivalence’ test. While other systems of law may provide excellent protection to freedom of speech rights, it would be asking lightening to strike three times in a vacant field to find actual equivalence with American law. The net effect will be that the US legal system, which is already predisposed to deny recognition to foreign defamation judgments, will now invariably deny recognition even in situations where recognition would clearly be appropriate under private international law.[6]

The Law before the SPEECH Act

The law of comity among nations as enunciated by the US Supreme Court inHilton v Guyot has, for over a century, stood for the proposition that while no nation is bound by the judgments of another, it is sound policy to do so but only in keeping ‘with the rights of its own citizens or of other persons who are under the protection of its laws.’[7] The Court also recognized that comity or recognition would not be extended in situations where the foreign law or judgment was contrary to American public policy.[8]

Under the Uniform Foreign Money Judgments Recognition Act (‘Uniform Act’), the standards for recognition are very similar to the common law of comity. In the few defamation cases arising under the Uniform Act, the courts have denied recognition based on the so-called public policy exception. The California statute states:
A court of this state is not required to recognise a foreign-country
judgment if anyof the following apply –

(3) The judgment or the cause of action or claim for relief on which
the judgment is based is repugnant to the public policy of this state
or of the United States.[9]
Under both the common law of comity and the Uniform Act, the clear judicial disposition has been to extend judicial recognition to the judgments of other nations. Until the groundbreaking decision in New York Times v Sullivan,[10]comity was also extended to foreign defamation judgments. However, since that 1964 decision, recognition has been invariably denied. As discussed later in this paper, this policy is flawed but now impossible to overcome because of the SPEECH Act.

Comity is based on approximations and is extended even when foreign law is contrary or different to US law. However, as observed in a recent US Court of Appeals decision, comity’s requirement of approximations or rough comparability applies even where there are First Amendment implications. InSarl Louis Feraud International v Viewfinder, Inc., the complainant sought to enforce a French judgment in a New York federal court.[11] The French judgment included a claim for copyright infringement. The defendant judgment debtor, opposing enforcement in the New York Court, asserted that the copyright judgment was repugnant to domestic public policy because the First Amendment doctrine of fair use which could trump copyright law did not exist in French law. The trial court agreed and denied recognition.[12] The US Court of Appeals reversed and observed that the barrier to opposing comity was very high and infrequently met. The Court of Appeals held that to deny comity, it was not sufficient to show that the First Amendment did not exist under French law but that the trial court must ‘determine whether the French intellectual property regime provides comparable protections’ and a full record needed to be developed to determine whether French protections ‘were sufficiently comparable to that required by the public policy of New York.’[13]

Unfortunately, as the law of comity has been applied in defamation cases decided before Viewfinder, the courts have failed to examine underlying public policy and issues of comparability but invariably terminate their analysis upon finding that the laws of the other country do not contain the First Amendment. The lengthy judicial treatment found in the decision of the Maryland Court of Appeal inTelnikoff v Matusevitch is illustrative of how comity has been incorrectly applied.[14] However, before discussing the rather arduous saga of Misters Telnikoff and Matusevitch, it is useful to examine an Illinois case in which policy issues concerning foreign defamation law and freedom of speech were dealt with quite thoughtfully. While not involving enforcement of a foreign defamation judgment, this case involved the arguably more sensitive issue of asking an American judge and jury to apply foreign defamation law in a trial as if the First Amendment did not exist.

In Desai v Hersh, the former Prime Minister of India, Moraji Desai, brought an action in Illinois for defamation against the American author of a book concerning United States foreign policy which allegedly defamed Mr. Desai by accusing him of selling state secrets to the CIA.[15] Desai was clearly a public official and the subject of the book, US foreign policy under Richard Nixon and Henry Kissinger, most clearly dealt with a matter of public concern to Americans. If American law governed, it was not disputed that the First Amendment would apply. However, Desai urged the court to apply the law of India – which was the common law of England. Not surprisingly, the author contended that American law should govern. The trial court [16] briefly discussed Indian law and concluded that it lacked ‘the crucial First Amendment protections which have been superimposed upon American common law defamation.’[17] Desai argued that the interests protected by the First Amendment were not implicated by the publication of defamatory statements in India:
Plaintiff asserts that the defendant is not entitled to the protections
of the first amendment when they publish for profit in India a book
that defames an Indian citizen. In plaintiff’s view because the first
amendment is designed to protect the free flow of information to the
American people, first amendment interests are not implicated by
defendant’s publication of allegedly defamatory statements in India
unrelated to the free flow of information to the American people.[18]

The court accepted that there existed a countervailing consideration to the automatic application of the First Amendment in that ‘due regard must be given to the foreign nation’s interest in compensating its own citizens.’[19] The court concluded that the First Amendment did not attach to all extraterritorial publications authored by Americans. By way of example, the court suggested that if the author had written a book and published it solely in India concerning Desai’s activities as Prime Minister and the subject matter minimally related to the US, then the First Amendment might not be applied in an American proceeding and Indian law could be applied without offending the US Constitution.[20] The court’s focus was the free flow of information to the American people and it reviewed a number of First Amendment cases in an effort to find a way to balance competing interests in the extraterritorial context. The court enunciated a series of inquiries that had to be made to achieve this balance. The first inquiry was whether a matter of public concern in the United States was involved:
For the court concludes that only where speech published in a
foreign country is about a matter of public concern in the United
States can first amendment protections “spill over” our borders.
However, not in every instance involving speech of public concern
should first amendment protection apply. Public concern is,
therefore, a necessary, but not a sufficient, condition of
extraterritorial protection.[21]
Since defendant’s book concerned the Nixon presidency, it clearly was about a matter of public concern in the US and had passed this first hurdle for application of the First Amendment. The court added that there remained the question of whether the defendant intentionally re-published the otherwise protected speech in the foreign country ‘in a manner sufficient to indicate abandonment of first amendment protection.’[22]

The measure applied by the court to determine whether there had been a knowing and purposeful abandonment of the First Amendment centred on the means of distributing the work in the foreign country. If the defendant engaged in systematic and organised distribution of the publication in the foreign country, as opposed to occasional copies being made available, then the court would find that there had been a knowing abandonment of First Amendment protection. The court made this distinction even though it recognized that ‘one or two copies may do almost as much damage to a plaintiff’s reputation as would a thousand.’[23]The court believed that its conclusion was consistent with First Amendment safeguards assuring maximum flow of information to the American public – an interest only overcome when the publisher intentionally abandoned First Amendment protections and even then would only be overcome to the extent of injury in the foreign nation. The court summarised its view of the law:
In light of the foregoing, the court holds as follows: in instances
where the plaintiff is a public official or public figure and thus
heightened first amendment protections, including the ‘actual
malice’ standard, apply to domestic publication, these same
protections will apply to extraterritorial publication of the same
speech where the speech is of a matter of public concern and the
publisher has not intentionally and directly published the speech
in a foreign country in a manner consistent with the intention to
abandon first amendment protections. This principle, being based
on conduct within the control of the potential defamation defendant,
minimizes any ‘chilling effect’ resulting from the potential
application of foreign defamation law. An author or publisher
who does not directly publish in a foreign country can rely on the
protections in New York Times.[24]

Desai stands for the proposition that where a publisher has intentionally sought foreign distribution in a manner consistent with the abandonment of First Amendment protection, then foreign defamation law can be controlling in an American trial or plenary proceeding without the imposition ofNew York Timesconstitutional rules.[25] Although Desai is only a trial court decision and is not binding precedent on any court, it is a thoughtful decision and certainly should be considered as persuasive authority.[26]

Using the logic of the Desai court, judicial recognition in the US of the now infamous British decision against Rachel Ehrenfeld would have been impossible had it been attempted.[27] First her book, Funding Evil: How Terrorism is Financed – and How to Stop It, clearly was of substantial interest to the American public. Second, the book was never intentionally distributed abroad evidencing a voluntary abandonment of First Amendment freedoms. On the other hand, had she or her publisher intentionally distributed the book in England, underDesai, she could be held liable for the damage her book caused in that country.

The ability of American courts to effectively weigh national interests was demonstrated in a recent conflict of law decision in which the court concluded that English, as opposed to American, substantive law applied to a dispute being litigated in an American court. The US Court of Appeals affirmed dismissal of Lanham Act and right of publicity claims in a case involving well-known musicians connected with the Beach Boys.[28] This case, filed in the Central District of California, pitted Mike Love, a resident of Nevada and one of the founding members of the Beach Boys, against Brian Wilson who was not only one of the founding members but was also the composer of many of that group’s most notable hits; also named as defendants were various European entities that were involved in the widespread distribution of a free CD with the Mail on Sunday. The CD included Brian Wilson’s solo version of some iconic Beach Boys hits. The CD jacket contained photographic images of the original Beach Boys including Mike Love.

Love had previously acquired exclusive rights to use the Beach Boys trademark in live performances. He contended that the cover of the CD infringed both California statutory and common law rights of publicity as well as trademark claims under the federal Lanham Act. Significantly, British law did not furnish a cause of action in any way analogous to California’s common law or statutory rights of publicity. With respect to Love’s rights of publicity claims, the fact most central to the court’s decision was that approximately 2.6 million copies of the CD were distributed with the Mail in the UK and Ireland, only 425 copies of the newspaper were distributed in the US and only 18 in California, and, none of the US copies contained the complained of CD. Indeed, the only CDs found in the US were evidently acquired by someone affiliated with plaintiff’s counsel through eBay and were kept by counsel in his office and had never entered the stream of commerce in the US.[29] Using California choice of law methodology, the right of publicity claims were dismissed.[30]

While California has both statutory and common law rights of publicity, England has neither. However, the court concluded that a conflict of laws was not present because California did not have a legitimate interest in having its laws applied. None of the parties were resident in California and only de minimis copies of the offending CD were present in the State. On the other hand, England’s interest in applying its laws (or the lack thereof) was paramount as the newspaper was British and virtually all of the copies were distributed in that jurisdiction. California’s interest was in protecting or safeguarding its citizens from diminution in the value of their names and likenesses and this interest was notably absent. The court added that even if California had a sufficient interest to create a true conflict of laws situation, British law would still prevail because the English interest in the millions of copies of newspapers in that country far exceeds California’s interest in only a few copies. The court added, in dictum, that while England did not recognise a right of publicity, it did offer stronger protections against defamation.[31]

The Love decision, by demonstrating American restraint in extraterritorial application of its speech-related laws, furnishes a compelling basis for courts in other nations to feel similarly restrained when confronted with situations where the interests at stake are primarily American.

The balancing of interests analysis, that was the underlying reasoning of the Desaidecision, also finds support within the century-old Hilton v Guyot common law of comity case where the Supreme Court said that foreign judgments should be recognised with ‘due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.’[32] Desai recognises that foreign defamation law is not so invariably odious as to be refused consideration in an American court. Desai correctly focuses on balancing the various interests rather than automatically rejecting the acceptability of foreign laws that would have First Amendment implications in a domestic setting. For example, in a case decided before New York Times v Sullivan, a pharmaceutical salesman sued an American company for slanderous comments made about him in New York and Iran. The court held that Iranian law would govern the proceedings insofar as the claim concerned statements made in Iran.[33] Under Desai or Love, the court reached the correct conclusion even if First Amendment arguments had been available because Iranian interests simply predominated. This raises the very legitimate question that if courts can be trusted to balance interests in the conflict of laws situation, why should that discretion be stripped where the court is merely being asked to enforce a foreign judgment?

Despite these cases where American courts carefully weigh interests, in the most comprehensive judicial treatment of comity in the defamation context, involving Telnikoff and Matusevitch, the courts lost the plot and failed to even consider whether there was any American nexus to the parties or the dispute.

In Telnikoff v Matusevitch, a proceeding to enforce an English defamation judgment had initially been brought in the US District Court for the District of Columbia.[34] The District Court declined to enforce the English judgment under the Uniform Act on the grounds that the English judgment was repugnant to the public policy of the State of Maryland.[35] The District Court decision was appealed to the US Court of Appeals. The Court of Appeals believed that the case presented novel issues under Maryland law and, pursuant to federal procedure, requested the highest state court in Maryland to decide the unresolved issues of State law. The question presented to the Maryland Court was whether ‘recognition of Telnikoff’s foreign judgment [would] be repugnant to the public policy of Maryland?’[36] The Maryland Court of Appeals responded in the affirmative and, based on that answer, the US Court of Appeals affirmed the decision of the District Court. Within this procedural history, the legal analysis is contained in the very expansive discussion by the Maryland Court of Appeals.[37]

Telnikoff was a British citizen employed by the BBC in London from 1972 to 1983. In 1983, he was employed by Radio Free Europe and was based in Munich, Germany. In 1984, Telnikoff wrote an article that was published in the LondonDaily Telegraph. In response to that article, Matusevitch wrote a letter to the editor that was also published in the Daily Telegraph. In that letter, Matusevitch allegedly accused Telnikoff of espousing racist views – Telnikoff’s original article suggested that the BBC should hire ethnic Russians, as opposed to Russian speaking minorities within the Soviet Union, as Russian language broadcasters. Telnikoff subsequently wrote a letter in reply that was also published by the Daily Telegraph in which he stated that he was not arguing for the racial superiority of ethnic Russians but that the BBC would be advised to hire Russian language broadcasters who identified themselves with the Russian people rather than broadcasters who saw themselves as Soviets. Telnikoff also demanded an apology. Matusevitch refused and Telnikoff commenced defamation litigation in London.

During the time in question, Matusevitch was also employed by Radio Free Europe in Europe. He had defected to Norway in 1968 and had remained in Europe at least until 1992. At the time of the American litigation, Matusevitch was employed by Radio Free Europe in Maryland – the point being that at all times relevant to the publications, Matusevitch was neither an American citizen nor a resident of the US. Telnikoff was a British subject and the defamatory publication was confined to a letter in a London daily newspaper.

Telnikoff commenced the defamation action in the High Court in London. In 1988, the trial was held in Matusevitch’s absence and judgment was rendered in favour of Telnikoff in the amount of GBP 65,000. Matusevitch then appeared and was able to set aside the verdict. At the new trial, Matusevitch successfully argued that his letter constituted fair comment (opinion) and was not motivated by malice and judgment was granted to him as a matter of law. The defense verdict was affirmed by the Court of Appeal and Telnikoff then took a further appeal to the House of Lords where the case was remanded on the grounds that jury issues existed as to the defense of fair comment. In 1992, on remand, the jury rejected the fair comment defense and returned a verdict in favour of Telnikoff in the amount of GBP 240,000. By this time, Matusevitch was residing in the US and, in 1994 Telnikoff commenced an action to enforce the judgment in the District of Columbia which ultimately resulted in the matter being sent to the Maryland Court of Appeals for a definitive statement of Maryland law.[38]

The Maryland Court of Appeals reviewed in substantial detail the various proceedings in the English courts before confronting the question of whether comity should be extended under the Uniform Act or whether the English judgment was repugnant to the laws of Maryland and the US.[39] The court noted the well-recognized precept that ‘no nation will suffer the laws of another to interfere with her own to the injury of her citizens.’[40]

Oddly enough, while the Maryland Court accepted that the US Court of Appeals wanted the Maryland Court to address only state law issues and did not ask for assistance to interpret the First Amendment, the Maryland Court devoted the bulk of its discussion to First Amendment questions. The Maryland Court of Appeals converted the inquiry concerning Maryland law into a general First Amendment discussion by stating that in ascertaining the public policy of Maryland, the court would ‘rely upon the history, policies, and requirements of the First Amendment and Article 40 of the Declaration of Rights [of Maryland].’[41]

The court began its analysis with references to English law commencing from the reign of Henry VIII and traced censorship through Star Chamber, the Restoration, and the Printing Act of 1662. At that point, the court changed its focus to North America and reviewed the Declaration of Independence, the Continental Congress and the Maryland Declaration of Rights (1776). After outlining Maryland constitutional law concerning freedom of the press, the court proceeded to reviewNew York Times and related US Supreme Court decisions. The court then outlined the common law of defamation in England. In its analysis, the Maryland Court reviewed the points where the common law was at odds with First Amendment law.[42] The Maryland Court then reviewed the alleged defamation under American constitutional law and concluded that Telnikoff’s evidence at trial failed in almost every way to satisfy New York Times requirements. However, what the Maryland Court failed to consider was whether there existed any basis for applying American law to the underlying dispute or whether the case even involved public figures. While the court performed an admirable historical comparison between English common law and First Amendment law, all that it succeeded in showing was that Telnikoff would likely not have prevailed if he had been a public figure and the case had initially been tried under American law. However, the fact that the outcome could have been different under American law had Telnikoff been someone else like a US senator or major celebrity should not have been a basis for rejecting comity.

Despite the length and apparent thoroughness of its opinion, the Maryland Court of Appeals never addressed the law as applied to the actual factual circumstances of the dispute. While the court discussed New York Times and other First Amendment cases, it neglected to consider whether the actual dispute involved public figures who would attract actual malice defamation standards. This lapse is even more significant in light of the fact that there was not a media defendant and even the private figure US cases that raise constitutional issues typically do so in the context of a media defendant.[43] Consequently, the historical and constitutional discussion, while interesting, was largely irrelevant to the underlying dispute.[44] Furthermore, the Maryland Court of Appeals never confronted the rather obvious issue of whether an English judgment in a dispute that had virtually no connection with the US could be repugnant to Maryland public policy.[45]The court did not consider the issue of how the application of English law to extraterritorial speech in any way impaired the First Amendment or public policy.[46] Had the defendant been an American or if the article had been published in America, or even if the matter was of concern to Americans, the difference in outcomes between the two bodies of law might be significant and seen as the basis for application of public policy arguments. But that was not the case and the English judgment was found to violate public policy simply and exclusively because the laws of the two countries were different in some situations.[47]

The parties and issues in Telnikoff had so little nexus to the concerns of the US that it would have been an ideal situation for an American court to apply the concepts articulated in Desai. The letter to the editor in question did not appear to even have been published in the US and the subject matter was likely of marginal interest even to English citizens and was certainly unimportant to Americans. Under these circumstances, the State and federal courts had an ideal opportunity to enforce the English judgment because there could not have been any American expectations of First Amendment protection and the sole connection to the US was the current residence of the defendant and this was never established as sufficient to involve American constitutional issues. But, the lack of connection to the US or US interests does not appear in the opinion even in passing. Perhaps the only legitimate constitutional issue for the Maryland Court to consider was the seemingly ludicrous size of the damage award for a letter to the editor – GBP 240,000. Arguably such a result raises fundamental due process issues but this was not part of the Court’s discussion.

The Maryland Court was aware of the Desai decision and cited it for the proposition that the First Amendment applied extraterritorially where the publication concerned US foreign policy. However, the Court did not make any application of this principle to the dispute between Telnikoff and Matusevitch. There was a complete failure to consider whether the First Amendment was intended to apply to parties and publications far removed from the legitimate interests of the American public. The court did not make any attempt to balance the American and English interests.[48] Instead, the court found refuge by comparing American speech and press freedoms to the common law of England, and concluding that ‘recognition of English defamation judgments could well lead to wholesale circumvention of fundamental public policy in Maryland and the rest of the country.’[49]

While the conclusion to Telnikoff on its own hardly establishes the virtues of comity as a legal doctrine, the unfortunate Maryland decision does not detract from the doctrine’s goal and potential for promoting internationalism and good relations among nations as well as protecting essential national interests. The more recent Viewfinder decision establishes that the test is sufficiency of comparability of laws and not bland platitudes and generalizations. Had the law of comity been thoughtfully applied in Telnikoff, it is highly doubtful that the English judgment would have been denied enforcement. However, under the SPEECH Act, what constituted an erroneous decision under the law of comity would have been an inevitable conclusion.

Why the SPEECH Act Is Unhelpful

As Telnikoff v Matusevitch demonstrates, American courts have been overly generous in applying the public policy exception to the law of comity in defamation cases. Now, armed with the SPEECH Act, this lack of discretion and analysis will become permanently institutionalized. That defamation claims have been singled out by Congress for special treatment telegraphs a clear message to the courts – no recognition of foreign judgments. One of the complaints about traditional comity or conflict of laws as analytical tools is that they are uncertain; a party cannot be totally assured of the result. That is true and that is how it should be. Certainty is not the same as being correct. Indeed, certainty or inflexibility may just be a method for assuring incorrect results. Comity requires a balancing of interests and, depending on how the scales tip, the results will be ascertained. The analysis deployed by the trial court in Desai is instructive and compelling. If a party intentionally publishes abroad, what possible justification is there for applying First Amendment freedom of speech standards for harms caused in that country?

First Amendment based defamation law is by no means a universal right. The US Supreme Court has largely based the law on the persona of the plaintiff rather than the content of the speech. Most other countries base the law on speech content.

Legal philosopher Ronald Dworkin and others have generally divided the justifications for freedom of expression into two categories – the instrumental and the constitutive.[50] Whether we look at freedom of speech from either instrumental or constitutive approaches, the scope of freedom of speech is defined by the nature of its content. That is, the instrumental theories of free speech hold that freedom of expression is desirable because it helps to achieve a specific result. The most commonly cited example of an instrumental theory is the argument that freedom of speech with respect to politics and government affairs is desirable to promote the smooth functioning of democratic government where citizens must elect public officials.[51] The constitutive theories for free speech contend that freedom of expression, regardless of whether it helps to achieve a particular and defined goal, is nevertheless desirable because it is an essential part of humanity. This argument is generally recognised to emanate from the works of Immanuel Kant and, while widely discussed, does not find the judicial sanction that the instrumental theories have attracted. Under either concept, the focus is on speech content and not the identity of the person spoken about.

In contrast, New York Times v Sullivan and its progeny cling to the concept of public officials and public figures both general and limited. Even though the reasonable journalism defense in England certainly has not yet flowered into a broad free speech privilege, it at least has the advantage of being directly connected to instrumental free speech theory. Reasonable journalism is predicated on the publication being a matter of public interest – it is content oriented. The logical disconnect between the First Amendment and free speech theory is important in the context of enforcement of judgments because under traditional rules of comity, the court is free to look for sufficient comparability among the laws. This is essential because it would be somewhat absurd to expect foreign laws to be perfectly congruent with the Supreme Court’s interpretation of the First Amendment which, while leading to some good results, is most certainly a rather eccentric way of articulating free expression rights. That American courts, as in Telnikoff v Matusevitch have routinely failed to make the proper analysis, is hardly an argument for casting judicial error in immutable stone. Yet, such a casting in stone is exactly what the SPEECH Act achieves.

The SPEECH Act is predicated on the court determining that the foreign law confers rights of freedom of speech equal to or greater than the First Amendment within the context of the pending case.[52] Such a determination is next to impossible even within the common law world. If civil law countries are added to the equation, the SPEECH Act probably creates an insurmountable burden. As the Second Circuit said in the Viewfinder decision, comity should be extended if the foreign law possesses sufficiently comparable rights – not rights equal to or greater than those found in US law.

The difficulty of applying the SPEECH Act standard is evident by just examining a few national laws. In Australia, corporations may not assert claims for defamation but may assert claims for injurious falsehood which is considerably more difficult to prove, especially as to damages. While Australia tends to follow a rather strict common law approach that clearly does not jump First Amendment hurdles, with respect to corporate claims, the argument should be somewhat different. Would an Australian judgment in favour of a corporation for injurious falsehood be enforceable under the SPEECH Act? Probably not; even though Australia has considerably more restrictions on corporate defamation claims than the US. But a finding of actual equivalence with the First Amendment would be highly unlikely. Similarly the English Reynolds defense may be applied to purely private figures because Reynolds focuses on content rather than the persona of the plaintiff. Would a British judgment involving a failed reasonable journalism defense in a case involving private figures be enforceable in the US – highly doubtful.

The virtue of comity is that it involves a balancing of factors and ultimately depends on all the circumstances. Under the 2007 decision in Viewfinder, there was a real opportunity for American courts to begin a more thoughtful approach to comity in First Amendment situations. In general, comity jurisprudence is very well developed and much of it derives from the rather mundane practice of family law. Before American states instituted no-fault divorce laws, many Americans tried to avail themselves of foreign, namely Mexican, divorces. Sometimes these foreign decrees were recognised by American courts and frequently they were rejected as sham and against public policy. The American determination depended on the facts of each case. The consequences of an error by the parties could be quite serious – such as a determination that subsequent marriages were bigamous and void. Yet the system worked because a body of jurisprudence developed whereby judicial standards if not certainty of results were established. The courts performed what courts are supposed to do: weigh facts against the law. In this salient respect the SPEECH Act fails.

The SPEECH Act, by requiring a finding of equivalence of laws, stands the law of comity among nations on its head and creates a situation wherein any difference between foreign and domestic law virtually requires a rejection of the foreign judgment. Furthermore, the compounding or aggravating factor of the SPEECH Act is that its procedural provisions which will have the effect of deterring judgment creditors from pursuing their rights amount to nothing less than de facto court-stripping.[53] Section 4105 of the SPEECH Act provides for an attorneys fee award to a party successful in opposing enforcement. However, if the party seeking enforcement meets its burden of proof, there is no award of attorneys’ fees. Since enforcement will be difficult because the party seeking enforcement has the burden of proving the equivalence of foreign and domestic law, the additional risk of one-sided attorneys’ fee awards makes it altogether clear that the real purpose of the SPEECH Act is to keep judgment creditors from even trying to enforce foreign judgments in the US.

While common in many other countries, attorneys’ fee awards are relatively uncommon in the US. To allow for fees to be awarded only to a successful defendant/judgment debtor is more than unusual, it is almost unprecedented. The true effect of the SPEECH Act is not only to immunize American authors and publishers but to keep these matters out of the prying eyes of the American courts.

As freedom of expression continues to evolve throughout the world and the effects of supra-national bodies of law such as the European Convention for the Protection of Human Rights and Fundamental Freedoms intrude upon local legal regimes, American authors and publishers should appreciate and recognize the legitimacy of these varying accommodations to free speech. The traditional American laws of comity among nations and rules for the conflict of laws provide for a flexible response to change and progress. Legislation such as the SPEECH Act which sets unworkable standards coupled with penalties directed at one party creates a regime designed to keep these disputes out of the courts altogether. The legal rights may still exist but conditions are created that makes use of the courts too risky. This is not good policy and is alien to American internationalism that has been well-established and respected for over one hundred years.

And, as for arguments that the First Amendment is too important to be left to the vagaries of the law of comity among nations, the doctrine of comity has been entrusted with issues as sensitive as child custody orders made in foreign divorce proceedings, so surely it can cope with the rights of authors and publishers. The problem with the SPEECH Act is that it seems to have been created in a legal vacuum without regard and respect for the American judiciary that has so thoughtfully balanced competing interests for so many years and has created a truly world-class body of precedent.

The SPEECH Act is very out of place in American law. The SPEECH Act denies the courts the ability to balance interests and is completely at odds with the rules of conflict of laws, which it leaves untouched. So, while American courts evidently may conduct trials using the substantive law of other countries depending on a balance of interests and expectations (Desai v Hersh), it may not enforce a foreign judgment unless the foreign law is an equivalent of American law. This results in a bizarre situation where, under the rules of conflict of laws, an English plaintiff could sue an American publisher in an American court for libels committed in England with a reasonable expectation that English law would apply. Yet, if that same plaintiff sued in an English court, enforcement in the US would be routinely denied unless English law was found to be the equivalent of the First Amendment.

Finally, and to come full-circle, a sufficient blast of gamma radiation will kill-off the common cold virus, it is also likely to kill the person in the process. Similarly, while the SPEECH Act may protect American authors and publishers where they deserve First Amendment rights, it does this by immunizing them from liability in every situation, including those where they should be held accountable.

Harry Melkonian specializes in media and intellectual property law at Melkonian & Co, Sydney, Australia. He is admitted to practice in New York, California, New South Wales Australia and England & Wales. He received a JD from NYU School of Law and a PhD (Law) from MacquarieUniversity in Australia and is the author of Defamation, Libel Tourism, and SPEECH Act of 2010: The First Amendment Colliding with the Common Law (Cambria Press 2011).

[1] 28 USC 4101 – 4105.

[2] 28 USC 4102.

[3] 28 USC 4105.

[4] 28 USC 4104.

[5] The arguments presented in this paper are drawn from the more comprehensive discussion contained in a recent text dealing with the Act and its implications. See Harry Melkonian, Defamation, Libel Tourism, and the SPEECH Act of 2010 – The First Amendment Colliding with the Common Law(New York, Cambria Press 2011) Ch. 3, 4.

[6] Traditionally, recognition of foreign judgments is usually guided by the law of comity except to the extent that it has been superseded by the Uniform Foreign Money Judgments Recognition Act as adopted in many US States, which essentially codifies the common law. For example, the California version is contained in Code of Civil Procedure ss 1713-1724; New York’s in Civil Practice Law and Rules ss 5303-5304. Prior to enactment of the SPEECH Act, the New York version of the Uniform Act was amended to provide language similar to the federal legislation.

[7] 159 US 113, 163-164 (1895).

[8] Ibid, 164-165.

[9] California Code of Civil Procedure s 1716(c)(3).

[10] 376 US 254 (1964).

[11] 406 F.Supp2d 274 (SDNY 2005), reversed and remanded, 489 F.3d 4774 (2d Cir 2007) (‘Viewfinder’).

[12] 406 F.Supp2d 274, 285 (SDNY 2005).

[13] 489 F.3d 474, 481-482, 484.

[14] 347 Md 561, 702 A2d 230 (1997)

[15] Desai v Hersh, 719 F Supp 670 (ND Ill 1989) (“Desai”). Trial judgment for defendant was affirmed in 954 F 2d 1408 (7th Cir 1992). The American publisher and the distributor of the book in India were not parties to this action having been dismissed by the claimant.

[16] Unless otherwise indicated, all citations are to the District Court’s pretrial decision. The issue of whether Indian or American law applied was not considered in the US Court of Appeals’ post trial opinion.

[17] Desai , 719 F Supp 670, 674 (ND Ill 1989).

[18] Ibid 674-675.

[19] Ibid 676.

[20] Ibid.

[21] Ibid 679.

[22] Ibid 680.

[23] Ibid 679.

[24] Ibid 680-681.

[25] Ultimately a jury decided against Desai. He subsequently appealed on the grounds that defendant’s exercise of the reporter’s privilege to shield sources frustrated Desai’s ability to show actual malice. The Court of Appeals noted that Desai’s point was correct under Herbert v Lando but was barred because of his failure to make a timely objection in district court. 954 F 2d 1408 (7th Cir 1992).

[26] In a subsequent case, the US District Court in New York City summarily dismissed a count brought under English defamation law as “antithetical to First Amendment protections.” In this unpublished opinion, the court did not even discuss the policy considerations raised in Desai. Abdullah v Sheridan Square Press, Inc, 1994 WL 419847 (SDNY 1994)) (not reported).

[27] See Ehrenfeld v Bin Mahfouz, 9 NY 3d 501 (2007) and 518 F 3d 102 (2d Cir 2008).

[28] Love v Associated Newspapers, Ltd , 611 F3d 601 (9th Cir 2010).

[29] 611 F3d at 608.

[30] Ibid at 610. California employs a governmental interest test for conflicts that has several components. The court examines the substantive law of each jurisdiction to see where they differ. If the laws differ, the court must determine whether both jurisdictions have an interest in having their law applied to the dispute. If both jurisdictions have a legitimate interest, the court must apply the law of the jurisdiction whose interest would be most impaired if its laws were not applied to the dispute. Only if both jurisdictions have a legitimate interest is a true conflict of laws situation presented.

[31] Ibid at 611.

[32] 159 US 113, 163-164 (1895) (emphasis added)

[33] Bakshandeh v American Cyanamid Co, 211 F.Supp 803 (SDNY 1962).

[34] 877 F Supp 1 (D DC 1995), affirmed, 159 F 3d 636 (DC Cir 1998) (unpublished opinion)

[35] Maryland law was deemed to govern because the defendant was a resident of that state.

[36] 159 F 3d 636 (DC Cir 1998).

[37] 347 Md 561, 702 A 2d 230 (Md 1997) (“Telnikoff”).

[38] This litigation, over a letter to the editor, was conducted over a period of ten years, having been commenced in London in 1988 and finally decided as effectively being unenforceable in the US in 1998. The litigation could have been even more protracted if the dissent in the Maryland Court of Appeals had prevailed. In his dissent, Judge Chasanow argued that the Court of Appeals should have declined to answer the question certified by the US Court of Appeals on the ground that the litigants argued to the Maryland Court that only federal constitutional issues were involved and not the public policy of Maryland. Had his view prevailed, the Court of Appeals for the District of Columbia Circuit would have written its own thorough opinion on First Amendment issues and, given the propensity of the parties to pursue legal remedies, a writ would undoubtedly have been taken to the US Supreme Court and, had the writ been granted, some definitive law on enforcement of foreign libel judgments might have emerged.

[39] While the Maryland Court examined US law, it actually was not until the 2005 revisions to the Uniform Act that it became clear that US policy implications in addition to State policy were explicitly made relevant under the Uniform Act.

[40] 702 A 2d 230, 237 (MD 1997).

[41] Ibid 239.

[42] Ibid 247-248.

[43] See, eg, Philadelphia Newspapers, 475 US 767 (1986).

[44] In fairness to the Maryland Court of Appeals, the US Court of Appeals did not help matters by certifying a legal question in the abstract without regard to the actual facts. Nevertheless, since the Maryland Court certainly did not shy from overstepping its bounds and delving into the depths of American constitutional law, it would not have been beyond the pale for this same Court to at least have considered the status of the parties and the actual facts of the underlying dispute.

[45] In an analysis based on game theory, the result has been criticised on the basis that ‘non-enforcement was more damaging to English culture than enforcement would have been to American culture.”’ Mark Rosen, “Should ‘Un-American’ Foreign Judgments Be Enforced” (2004) 88 Minnesota Law Review783, 859-862.

[46] Molly Van Houweling, “Enforcement of Foreign Judgments, The First Amendment, and Internet Speech: Notes for the Next Yahoo! v Licra” (2003) 24Michigan Journal of International Law 697, 704-706.

[47] In Telnikoff, the connection of the parties and the dispute to Maryland was so flimsy that it is difficult to see how the case even remotely involved domestic public policy and consequently, the decision of the court to reject even a pre-Reynolds era English judgment was likely incorrect under the Uniform Act.

[48] Mark Rosen, “Exporting the Constitution” (2004) 53 Emory Law Journal171, 230.

[49] Telnikoff, 702 A 2d 230, 250 (Md 1997).

[50] Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Cambridge MA, Harvard University Press, 1996) 199-200.

[51] This argument was most prominently articulated by Professor Alexander Meiklejohn but clearly predates him and has received broad recognition in court decisions in numerous countries including Australia and New Zealand. See Alexander Meiklejohn, Free Speech and Its relation to Self-Government (Clark, NJ, Lawbook Exchange, 1948, 2008 reprint)

[52] To this limited extent, the SPEECH Act would seem to militate against absurd results such as in Telnikoff v Matusevitch where the trial court rejected the English judgment simply by comparing American and English law in general without even commenting on how those differences might relate to the actual facts. In fact, outside of public person cases, US law and the common law are not all that dissimilar.

[53] Court-stripping refers to the highly discredited practice of the legislature drafting laws in such a way as to preclude judicial intervention in otherwise justiciable causes. For example, US budgetary legislation that denies funding to the Civil Rights Division of the Department of Justice to enforce desegregation of schools through bussing would have effectively overturned court decisions that required desegregation. See Lowell Weicker, Jr, Maverick – A Life In Politics(New York, Little, Brown, 1995) 127-130.

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