[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 2977 Introduced in Senate (IS)]







110th CONGRESS
  2d Session
                                S. 2977

  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 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

_______________________________________________________________________

                                 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 Constitution of the United States.
            (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 the people of the United States.
            (4) 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.
            (5) 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.
            (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 United States persons 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 United States persons.
            (9) 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.
            (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 Constitution of the United 
        States and essential to informing the people of the United 
        States, their representatives, and other policy-makers.
            (11) 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.
            (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 the people 
        of the United States 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.--
        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.
            (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 any foreign judgment in the 
                applicable foreign lawsuit.
                    (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 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.
    (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 under the first 
amendment to the Constitution of the United States.
    (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 incorporated in, or with its primary location 
        or place of operation in, the United States.
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