A Victory for Free Speech

by Jeffrey Azarva  •  Jul 20, 2010 at 3:59 pm

http://www.legal-project.org/blog/2010/07/a-victory-for-free-speech

Yesterday afternoon, the Senate took a critical step in eradicating "libel tourism" when it passed the SPEECH Act by unanimous voice vote. The result was a victory for the Legal Project which, early on in the effort, began providing research and information to the Senate committee which produced the bill.

Libel tourism is the practice of intimidating U.S. authors by suing them for libel in foreign jurisdictions less protective of free speech rights. England's plaintiff-friendly libel laws make it a popular destination for this form of forum shopping. In a prominent 2005 case, a Saudi financier sued U.S.-based author Dr. Rachel Ehrenfeld in England, after 23 copies of her book on terror financing were sold online in the United Kingdom. More recently, in 2010, moderate Muslim activist Dr. Zuhdi Jasser was threatened with suit in England by a Saudi oil baron Jasser had criticized on his website.

The SPEECH Act is modeled on New York state's "Libel Terrorism Protection Act" and bars enforcement of foreign libel judgments against U.S. persons if they would not have been found liable in a U.S. court applying domestic First Amendment law. It also permits U.S. defendants to recover their legal fees in certain cases.

The bill, which will now go back to the House of Representatives for final consideration, is long overdue. Despite the documented threat of libel tourism, state and federal lawmakers have been slow to respond. Since 2008, only three states (California, Illinois, and Florida) have enacted legislation like New York's aimed at countering the phenomenon. Should the SPEECH Act become law, it would extend this patchwork of protection nationwide to those working on sensitive but critical topics such as radical Islam and terror financing.

The Senate's libel tourism prevention bill is, of course, no panacea. The legislation would not prevent the initiation of libel tourism suits, but only help to mitigate their harmful impact. Default judgments against U.S. defendants could still be enforced in places like the United Kingdom, chilling the work of U.S. authors who travel abroad or have foreign holdings. In the long run, the surest remedy is for countries like England to reform their libel laws so that they are not abused. Recent developments suggest this may be forthcoming.

In the meantime, the Senate's bipartisan bill is a welcome first step in combating the problem, ensuring that foreign plaintiffs can no longer make end runs around the First Amendment. Hill staffers advise us that the House will vote on the Senate version soon, although a date has not been set. When it does, authors and journalists across the country may finally be able to breathe a sigh of relief.

August 2, 2010 update: On July 27, 2010, the U.S. House of Representatives passed the SPEECH Act by voice vote. The bill has since been sent to the White House, where the President is expected to sign it into law this week.

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