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Tuesday, September 23, 2008
This Just In: U.S. Congressmen defend Free Speech!
What happens if you are a wealthy Saudi tycoon and you can't implement draconian tactics on a U.S. author who writes about your financial ties to terrorism because of troublesome civil liberties? Simple. You go shopping for a friendly court. It's been called "libel tourism" and if you write books about wealthy Arabs and their ties to terrorism, you could be on the recieving end of a British court.
Clifford May explains in detail how it works. The short version: The tycoon in question can't really expect to win a case for libel in U.S. because of a little thing called the first amendment. The U.S. courts have upheld the right to accuse others of crimes provided there isn't gross negligence. And anyone who claims libel must produce evidence of negligence or false information. So the wealthy tycoon needs a friendlier venue. Thanks to the internet virtually any book can be bought in England. So if the book has been bought in England (even if you have to pay someone to buy it!) the book falls under the jurisdiction of British libel statutes, which definitely put the burden of proof on the defendant.
Now if you are an author who writes about the financial backing of terrorism, you probably don't have the money to trapse over to England to defend yourself. So by default, you are convicted. Now you can't come to Britain without fear of being arrested. Less complicated than blowing up a building and possibly more effective. But not so fast
It seems several U.S. congressmen are giving the authors some teeth to defend themselves against these predators. Human Events reports:
"The U.S. Congress is now considering the bipartisan Free Speech Protection Act of 2008. Sponsored by Arlen Specter (R-Pa.), Joseph Lieberman (I-Conn.), and Chuck Schumer (D-N.Y.) in the Senate and Reps. Pete King (R-NY), Anthony Weiner (D-NY) and ten others in the House, the act would protect all U.S. authors from 'libel tourism.' As Lieberman and Specter note, 'The new legislation would not shield those who recklessly or maliciously print false information. It would ensure that Americans are held to and protected by American standards.' "
According to Clifford May, essentially the new law would nullify any judgement on U.S. citizens for libel that stem from a court that has less freedom of speech than the U.S. Which means pretty much every country across the pond. Also the act would give U.S. citizens the right to give these thugs a taste of their own medicine.
Authors could counter-sue in U.S. court. Doubtful that any Saudi business man will fork over damages but there could be uncomfortable light thrown on certain business dealings as a result of a counter-suit. I'm no lawyer (I don't even play one on TV) but I would think maybe the counter-suit would allow subpoena of financial records. Hmmm. I have a feeling certain Arab financiers definitely don't want that to happen. . .
. . . But because I am a poor grad student (and would like to visit London someday), these financiers will remain nameless (until that bill passes). I rarely ever say this, but here goes . . . [deep breath] There ought to be a law. Kudos to the bi-partisan sponsors of this bill!
Posted by Jay Lafayette on September 23, 2008 | Permalink
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Is this really about protecting free speech?
"...the bill is arguably under-inclusive. If Congress is truly concerned with the chilling effect that less-speech-protective Europe law has on U.S. speech, it should not stop with defamation law, but should provide protection from all European laws that potentially abridge expression that would be protected under the First Amendment. Consider Yahoo! v. LICRA, the Ninth Circuit case dealing with the enforceability of First-Amendment violative foreign judgments. Yahoo! was sued in France not for defamation, but for providing access to Nazi paraphernalia and other materials (such as Mein Kampf) that violated the more-speech-restrictive French hate speech laws, but that would be protected by the First Amendment. If the idea of the federal cause of action is to protect U.S. speakers from foreign judgments imposed for protected speech in the United States, Yahoo! needs the insulation of a damages claim just as much as a defamation defendant. So, too, might a future domestic publisher or author who runs afoul of some future European hate-speech regulation that prohibits, or example, cartoons criticizing radical Islam."
Sometime in early April 2000, LICRA’s [La Ligue Contre Le Racisme et L’Antisemitisme (“LICRA”) and L’Union des Etudiants Juifs de France (“UEJF”)] chairman sent by mail and fax a cease and desist letter, dated April 5, 2000, to Yahoo!’s headquarters in Santa Clara, California. The letter, written in English, stated in part:
[W]e are particularly choked [sic] to see that your Company keeps on presenting every day hundreds of nazi symbols or objects for sale on the Web. This practice is illegal according to French legislation and it is incumbent upon you to stop it, at least on the French Territory."
Posted by: DJ | 2008-09-23 12:13:34 PM
DJs point is well taken. Maybe the law is under-inclusive from the point of view of certain groups. And it may be that the wise white guys up on capital hill are supporting this for alterior motives. But if the question is whether this law would protect freedom of expression, I think it would.
Posted by: Jay Lafayette | 2008-09-23 12:37:01 PM
Great post Jay,
I wrote about this bill when it was introduced to the Senate:
http://westernstandard.blogs.com/shotgun/2008/07/a-stopped-clock.html
Posted by: Kalim Kassam | 2008-09-23 4:30:20 PM
While libel tourism is a genuine concern, this bill is a pointless bit of grandstanding.
First, it assumes that every other country has to adopt the same defamation law as the United States. (Just as DJ's post assumes that every country has to adopt the same commercial laws as the US.) In fact, US defamation law is unique in that it requires "public figures" to prove actual malice in order to recover libel damages, even if the information published is false. This principle, known as the Sullivan doctrine from the 1960s case in which it was recognized by the US Supreme Court, has been criticized even within the US, not least of all because of the vexed question of what constitutes a "public figure". Would a Saudi businessman be considered a public figure? Maybe, maybe not.
Second, even if a US court refuses to enforce the judgment of the foreign court, it remains enforcable in the jurisdiction in which default judgment was granted - say the UK -- and in most other places in the world. So May's concern -- that a poor non-fiction writer would be effectively barred from the UK by the default judgment -- is not addressed at all.
Third, if the US thumbs its nose at the judgment of foreign courts, why would it expect those courts to enforce the judgments arising from the counter-claim allowed by this bill? Enforcement of judgment's isn't based solely on a principle of reciprocity, but it's certainly a factor.
Finally, it's not really necessary. US court have shown them quite open to arguments that they should not enforce judgement obtained through libel tourism because to do so would be against public policy.
Posted by: truewest | 2008-09-23 8:38:23 PM
"Third, if the US thumbs its nose at the judgment of foreign courts, why would it expect those courts to enforce the judgments arising from the counter-claim allowed by this bill?"
Truewest,
Correct me if I'm wrong, but if a certain Saudi businessman happened to have assets in the United States, couldn't they be seized through the kind of counter-claim this bill authorizes?
Thinking about it, the instigators of libel tourism likely have more assets at risk in the United States than authors have in the jurisdictions within which most of the libel claims take place. The wealthy Saudis have quite a bit to lose, unlike their targets.
You seem to know a lot about the law. Am I wrong about this?
Best,
Terrence
Posted by: Terrence Watson | 2008-09-23 8:51:45 PM
Terrence,
You're absolutely right that Saudi businessmen may have US assets against which a successful counterclaimant might execute. However, its seems likely that those assets will either fairly mobile or held by corporate entities, while the defamation suit will filed by a person, whose personal assets in the US might well be quite modest.
It should be noted that the law would do more than stop Saudi tycoons from indulging in lible tourism. The bill as drafted purports to create a cause of action allowing a defendant to counterclaim against any foreign plaintiff who has the unmitigated gall to rely on the law of his home jurisdiction. The cause of action claus reads:
(a) Cause of Action- Any United States person against whom a lawsuit is brought in a foreign country for defamation on the basis of the content of any writing, utterance, or other speech by that person that has been published, uttered, or otherwise disseminated in the United States may bring an action in a United States district court specified in subsection (f) against any person who, or entity which, brought the foreign suit if the writing, utterance, or other speech at issue in the foreign lawsuit does not constitute defamation under United States law.
In other words, if an American publishes something accusing Prime Minister Harper (clearly a public figure) of bestiality and that story is then published in Canada -- either because someone reads it on the internet or because the paper was distributed here - Little Stevie Firewall would have to fear a crushing counterclaim unless he was confident he could show that the story was published with actual malice, as per Sullivan v. New York Times. In other words, in order to defend his reputation, our Prime Minister would almost be forced to argue American law in a Canadian court.
It's a terrible law, a gross example of the American practice of passing laws that purport to have extraterritorial effect.
Posted by: truewest | 2008-09-23 9:26:43 PM
Truewest,
"It's a terrible law, a gross example of the American practice of passing laws that purport to have extraterritorial effect."
I think I see what you're saying. But why can't the Americans just say they are acting to protect the rights of their citizens under U.S. law? If there's one thing that seems to unite Americans across the board, it's that the limits law places on speech should be as narrow as possible. They seem to see this as a moral demand and their desire to see that citizens receive the protection of this moral demand seems understandable.
While there is some risk that public figures will be recklessly libeled if the law passes, public figures in the United States are already limited by the Sullivan doctrine. Is it really so bad for politicians down here? Do they get accused of bestiality in major newspapers where the accusation might be taken seriously and actually damage their reputation? I'm not sure I see it.
Anyway, thank you for your insight on this issue. At one time, I thought this law was a great idea, but now my confidence in it is somewhat shaken.
Best,
Terrence
Posted by: Terrence Watson | 2008-09-23 11:07:58 PM
Terrence,
I don't have a problem with American defamation law per se. Indeed, I think there are strong arguments in favour of requiring public servants to show actual malice to recover for libel (It would, for one think, stop our politicians from suing one another).
I do, however, have a problem with an American statute that effectively tells everyone else in the world that their courts and their laws are chopped liver, unless they adopt American's particular version of free speech. It reeks of imperialism.
Posted by: truewest | 2008-09-23 11:50:24 PM
If trollwaste actually knew anything about law, he'd know that the American courts already accept jurisdiction for any action against any party that causes economic harm to an American. This bill doesn't represent any departure from the existing principles. It has no element of extra-territoriality. And of course enforcing judgments abroad is routine. It's just not the kind of thing that's covered in your high school law class.
Posted by: ebt | 2008-09-25 3:43:19 PM
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