[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5814 Introduced in House (IH)]







110th CONGRESS
  2d Session
                                H. R. 5814

  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.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             April 16, 2008

Mr. King of New York introduced the following bill; which was referred 
                   to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
  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.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Free Speech Protection Act of 
2008''.

SEC. 2. FINDINGS.

    The Congress finds the following:
            (1) The freedom of speech and the press is enshrined in the 
        First Amendment to the United States Constitution.
            (2) 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.
            (3) 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 Americans.
            (4) The First Amendment jurisprudence of the Supreme Court, 
        articulated in such precedents as New York Times v. Sullivan, 
        376 U.S. 254 (1964), and its progeny, reflects the fundamental 
        value that Americans 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.
            (5) Some persons are obstructing the free expression rights 
        of Americans, and the vital interest of the American people 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 Americans 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.
            (6) 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.
            (7) 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 Americans against whom such suits are 
        brought.
            (8) 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 Americans.
            (9) The Americans 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 by 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.
            (10) 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 United States Constitution 
        and essential to informing the American people, their 
        representatives, and other policy-makers.
            (11) In turn, the American people 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.
            (12) 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 Americans 
        in connection with speech that occurs, in whole or in part, in 
        the United States.

SEC. 3. FEDERAL CAUSE OF ACTION.

    (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.
    (b) Jurisdiction.--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.
    (c) Remedies.--
            (1) Order to bar enforcement and other injunctive relief.--
        If the cause of action set forth in subsection (a) is 
        established, the district 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 United States Constitution.
            (2) Damages.--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:
                    (A) The amount of the foreign judgment.
                    (B) The costs, including all legal fees, 
                attributable to the foreign lawsuit that have been 
                borne by the United States person.
                    (C) The harm caused to the United States person due 
                to decreased opportunities to publish, conduct 
                research, or generate funding.
    (d) Treble Damages.--If, in an action brought under subsection (a), 
the factfinder 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 First Amendment rights 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 
factfinder may award treble damages.
    (e) Expedited Discovery.--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 by the First 
Amendment to the United States Constitution.
    (f) Venue.--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.
    (g) Timing of Action; Statute of Limitations.--
            (1) Timing.--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.
            (2) 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.

SEC. 4. APPLICABILITY.

    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.

SEC. 5. CONSTRUCTION.

    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.

SEC. 6. DEFINITIONS.

    In this Act:
            (1) Defamation.--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.
            (2) Foreign country.--The term ``foreign country'' means 
        any country other than the United States.
            (3) Foreign judgment.--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.
            (4) United states.--The term ``United States'' means the 
        several States, the District of Columbia, and any commonwealth, 
        territory, or possession of the United States.
            (5) 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 lawfully doing business in the United States.
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