The New York Times weighed in Tuesday on “libel tourism” and advocated for the Senate bill that would protect U.S. citizens’ First Amendment rights from the more stringent laws of other countries, notably England.
Senators Arlen Specter and Joe Lieberman recently introduced the Free Speech Protection Act of 2008 in the U.S. Senate. A bi-partisan effort prompted primarily by concern over the rights of U.S. citizens to write about terrorism, it would protect American citizens from paying damages in libel cases in foreign courts. In other words, First Amendment rights would not dissolve at U.S. borders. American defendants could also sue the plaintiff for triple damages if the original case were “part of a scheme to suppress a U.S. person’s First Amendment rights,” according to House Rep. Peter King [1]. New York and Illinois have already passed similar laws; we urged the passage of the New York law last year in a letter to Gov. Paterson.
In U.S. libel suits, the plaintiff must prove that an allegation is false. Under British law, the defendant is pinned with the responsibility to prove that a statement is true or fair. Groups monitoring international human rights violations find themselves in a perilously disadvantaged position. Anonymous sources are often the only option in investigations of crimes under authoritarian governments. Several months ago, Human Rights Watch of New York came under legal fire in London for its claims implicating a foreign citizen in a mass murder. According to HRW’s general counsel Dinah PoKemper in The Economist,
“We were required to spend thousands of pounds in defending ourselves against the prospect of a libel suit, when we had full confidence in the accuracy of our report.”
Whether or not they can prove their statements true, defendants under British law have to pay legal fees. So theoretically, a U.S. author whose work is distributed in the U.K. could have to pay a substantial amount of money if a claimant were able to prove her material defamatory, no matter her legal response. The suit would be a violation of First Amendment rights, and the threat itself engenders a serious chilling effect on free speech.
U.S. citizen Rachel Ehrenfeld had this experience when a subject of her 2003 book “Funding Evil” took action against her in England, where 23 copies had been bought online. Khalid bin Mahfouz, a Saudi businessman, denied funding Al Qaeda before September 11. When Ms. Ehrenfeld declined to appear in court, she lost by default, and Mr. Mahfouz was awarded £50,000.
Critics of the Free Speech Protection Act, including Mr. Mahfouz’s lawyer, Timothy Finn, note that the law addresses a problem that doesn’t exist, since “no foreign libel judgment has ever been enforced in the United States.” Yet Ms. Ehrenfeld argues that the mere threat of a lawsuit is enough to make writers reconsider what and where to publish.
A federal law would make it clear that the publication of U.S. citizens’ work in other countries doesn’t nullify their First Amendment rights. British lawmakers are currently collaborating with U.S. media lawyers and editors to issue a report that might prompt changes to the British libel laws themselves. As it stands now, though, only residents of New York and Illinois can be sure that their free speech is fully protected overseas.
*UPDATE: On Thursday (6/11), H.R. 2765 passed the House Judiciary Committee. Rep. Steve Cohen (D-Tenn)’s bill states that the U.S. need not recognize foreign libel judgements that are “repugnant” to the First Amendment. Sen. Specter’s more rigorous bill hasn’t yet been put to a vote.