IN THE SENATE OF THE UNITED STATES
May 6, 2008
Mr. Specter (for himself and Mr. Lieberman) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
To create a Federal cause of action to determine whether defamation exists under United States law in cases in which defamation actions have been brought in foreign courts against United States persons on the basis of publications or speech in the United States.
This Act may be cited as the
Free Speech Protection Act of
The Congress finds the following:
The freedom of speech and the press is enshrined in the first amendment to the Constitution of the United States.
Free speech, the free exchange of information, and the free expression of ideas and opinions are essential to the functioning of representative democracy in the United States.
The free expression and publication by journalists, academics, commentators, experts, and others of the information they uncover and develop through research and study is essential to the formation of sound public policy and thus to the security of the people of the United States.
The first amendment jurisprudence of the Supreme Court of the United States, articulated in such precedents as New York Times v. Sullivan, 376 U.S. 254 (1964), and its progeny, reflects the fundamental value that the people of the United States place on promoting the free exchange of ideas and information, requiring in cases involving public figures a demonstration of actual malice—that is, that allegedly defamatory, libelous, or slanderous statements about public figures are not merely false but made with knowledge of that falsity or with reckless disregard of their truth or falsity.
Some persons are obstructing the free expression rights of United States persons, and the vital interest of the people of the United States in receiving information on matters of public importance, by first seeking out foreign jurisdictions that do not provide the full extent of free-speech protection that is fundamental in the United States and then suing United States persons in such jurisdictions in defamation actions based on speech uttered or published in the United States—speech that is fully protected under first amendment jurisprudence in the United States and the laws of the several States and the District of Columbia.
Some of these actions are intended not only to suppress the free speech rights of journalists, academics, commentators, experts, and other individuals but to intimidate publishers and other organizations that might otherwise disseminate or support the work of those individuals with the threat of prohibitive foreign lawsuits, litigation expenses, and judgments that provide for money damages and other speech-suppressing relief.
The governments and courts of some foreign countries have failed to curtail this practice, permitting lawsuits filed by persons who are often not citizens of those countries, under circumstances where there is often little or no basis for jurisdiction over the United States persons against whom such suits are brought.
Some of the plaintiffs bringing such suits are intentionally and strategically refraining from filing their suits in the United States, even though the speech at issue was published in the United States, in order to avoid the Supreme Court’s first amendment jurisprudence and frustrate the protections it affords United States persons.
The United States persons against whom such suits are brought must consequently endure the prohibitive expense, inconvenience, and anxiety attendant to being sued in foreign courts for conduct that is protected under the first amendment, or decline to answer such suits and risk the entry of costly default judgments that may be executed in countries other than the United States where those individuals travel or own property.
Journalists, academics, commentators, experts, and others subjected to such suits are suffering concrete and profound financial and professional damage for engaging in conduct that is protected under the Constitution of the United States and essential to informing the people of the United States, their representatives, and other policy-makers.
In turn, the people of the United States are suffering concrete and profound harm because they, their representatives, and other government policymakers rely on the free expression of information, ideas, and opinions developed by responsible journalists, academics, commentators, experts, and others for the formulation of sound public policy, including national security policy.
The United States respects the sovereign right of other countries to enact their own laws regarding speech, and seeks only to protect the first amendment rights of the people of the United States in connection with speech that occurs, in whole or in part, in the United States.
Federal cause of action
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.
It shall be sufficient to establish jurisdiction over the person or entity bringing a foreign lawsuit described in subsection (a) that such person or entity has filed the lawsuit against a United States person, or that such United States person has assets in the United States against which the claimant in the foreign action could execute if a judgment in the foreign lawsuit were awarded.
Order to bar enforcement and other injunctive relief
In a cause of action described in subsection (a), if the court determines that the applicable writing, utterance, or other speech at issue in the foreign lawsuit does not constitute defamation under United States law, the court shall order that any foreign judgment in the foreign lawsuit in question may not be enforced in the United States, including by any Federal, State, or local court, and may order such other injunctive relief that the court considers appropriate to protect the right to free speech under the first amendment to the Constitution of the United States.
In addition to the remedy under paragraph (1), damages may be awarded to the United States person bringing the action under subsection (a), based on the following:
The amount of any foreign judgment in the applicable foreign lawsuit.
The costs, including all legal fees, attributable to the foreign lawsuit that have been borne by the United States person.
The harm caused to the United States person due to decreased opportunities to publish, conduct research, or generate funding.
If, in an action brought under subsection (a), the court or, if applicable, the jury determines by a preponderance of the evidence that the person or entity bringing the foreign lawsuit at issue intentionally engaged in a scheme to suppress rights under the first amendment to the Constitution of the United States by discouraging publishers or other media not to publish, or discouraging employers, contractors, donors, sponsors, or similar financial supporters not to employ, retain, or support, the research, writing, or other speech of a journalist, academic, commentator, expert, or other individual, the court may award treble damages.
Upon the filing of an action under subsection (a), the court may order expedited discovery if the court determines, based on the allegations in the complaint, that the speech at issue in the foreign defamation action is protected under the first amendment to the Constitution of the United States.
An action under subsection (a) may be brought by a United States person only in a United States district court in which the United States person is domiciled, does business, or owns real property that could be executed against in satisfaction of a judgment in the foreign defamation lawsuit giving rise to the action.
Timing of action; statute of limitations
An action under subsection (a) may be commenced after the filing of the defamation lawsuit in a foreign country on which the action is based.
Statute of limitations
For purposes of section 1658(a) of title 28, United States Code, the cause of action under subsection (a) accrues on the date on which the defamation lawsuit in a foreign country on which the cause of action is based is filed.
This Act applies with respect to any foreign lawsuit that is described in section 3(a) and is brought in the foreign country concerned before, on, or after the date of the enactment of this Act.
Nothing in this Act limits the right of foreign litigants who bring good faith defamation actions to prevail against journalists, academics, commentators, and others who have failed to adhere to standards of professionalism by publishing false information maliciously or recklessly.
In this Act:
The term defamation means any action for defamation, libel, slander, or similar claim alleging that forms of speech are false or have caused damage to reputation.
The term foreign country means any country other than the United States.
The term foreign judgment means any judgment of a foreign country, including the court system of a foreign country, that grants or denies any form of relief, including injunctive relief and monetary damages, in a defamation action.
The term United States means the several States, the District of Columbia, and any commonwealth, territory, or possession of the United States.
United States person
The term United States person includes a United States citizen, an alien lawfully admitted for permanent residence to the United States, and a business entity incorporated in, or with its primary location or place of operation in, the United States.