II 111th CONGRESS 2d Session S. 3518 IN THE SENATE OF THE UNITED STATES June 22, 2010 Mr. Leahy (for himself, Mr. Sessions, Mr. Specter, Mr. Schumer, and Mr. Lieberman) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To amend title 28, United States Code, to prohibit recognition and enforcement of foreign defamation judgments in United States Courts where those judgments undermine the first amendment to the Constitution of the United States, and to provide a cause of action for declaratory judgment relief against a party who has brought a successful foreign defamation action whose judgment undermines the first amendment.

1.

Short title

This Act may be cited as the Securing the Protection of our Enduring and Established Constitutional Heritage Act or the SPEECH Act.

2.

Findings

Congress finds the following: (1)The freedom of speech and the press is enshrined in the first amendment to the Constitution, and is necessary to promote the vigorous dialogue necessary to shape public policy in a representative democracy. (2)Some persons are obstructing the free expression rights of United States authors and publishers, and in turn chilling the first amendment to the Constitution of the United States interest of the citizenry in receiving information on matters of importance, by seeking out foreign jurisdictions that do not provide the full extent of free-speech protections to authors and publishers that are available in the United States, and suing a United States author or publisher in that foreign jurisdiction. (3)These foreign defamation lawsuits not only suppress the free speech rights of the defendants to the suit, but inhibit other written speech that might otherwise have been written or published but for the fear of a foreign lawsuit. (4)The threat of the libel laws of some foreign countries are so dramatic that the United Nations Human Rights Committee examined the issue and indicated that in some instances the law of libel has served to discourage critical media reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work. The advent of the internet and the international distribution of foreign media also create the danger that one country's unduly restrictive libel law will affect freedom of expression worldwide on matters of valid public interest. (5)Governments and courts of foreign countries scattered around the world have failed to curtail this practice of permitting libel lawsuits against United States persons within their courts, and foreign libel judgments inconsistent with United States first amendment protections are increasingly common.

3.

Recognition of foreign defamation judgments

(a)

In General

Part VI of title 28, United States Code, is amended by adding at the end the following: 181

Foreign Judgments

Sec. 4101. Definitions. 4102. Recognition of foreign defamation judgments. 4103. Removal. 4104. Declaratory judgments. 4105. Attorney's fees.

4101.

Definitions

In this chapter: (1)

Defamation

The term defamation means any action or other proceeding for defamation, libel, slander, or similar claim alleging that forms of speech are false, have caused damage to reputation or emotional distress, have presented any person in a false light, or have resulted in criticism, dishonor, or condemnation of any person. (2)

Domestic court

The term domestic court means a Federal court or a court of any State. (3)

Foreign court

The term foreign court means a court, administrative body, or other tribunal of a foreign country. (4)

Foreign judgment

The term foreign judgment means a final judgment rendered by a foreign court. (5)

State

The term State means each of the several States, the District of Columbia, and any commonwealth, territory, or possession of the United States. (6)

United States person

The term United States person means— (A)a United States citizen; (B)an alien lawfully admitted for permanent residence to the United States; (C)an alien lawfully residing in the United States at the time that the speech that is the subject of the foreign defamation action was researched, prepared, or disseminated; or (D)a business entity incorporated in, or with its primary location or place of operation in, the United States.

4102.

Recognition of foreign defamation judgments

(a)

First amendment considerations

(1)

In General

Notwithstanding any other provision of Federal or State law, a domestic court shall not recognize or enforce a foreign judgment for defamation unless the domestic court determines that— (A)the defamation law applied in the foreign court’s adjudication provided at least as much protection for freedom of speech and press in that case as would be provided by the first amendment to the Constitution of the United States and by the constitution and law of the State in which the domestic court is located; or (B)even if the defamation law applied in the foreign court’s adjudication did not provide as much protection for freedom of speech and press as the first amendment to the Constitution of the United States and the constitution and law of the State, the party opposing recognition or enforcement of that foreign judgment would have been found liable for defamation by a domestic court applying the first amendment to the Constitution of the United States and the constitution and law of the State in which the domestic court is located. (2)

Burden of establishing application of defamation laws

The party seeking recognition or enforcement of the foreign judgment shall bear the burden of making the showings required under subparagraph (A) or (B). (b)

Jurisdictional considerations

(1)

In general

Notwithstanding any other provision of Federal or State law, a domestic court shall not recognize or enforce a foreign judgment for defamation unless the domestic court determines that the exercise of personal jurisdiction by the foreign court comported with the due process requirements that are imposed on domestic courts by the Constitution of the United States. (2)

Burden of establishing exercise of jurisdiction

The party seeking recognition or enforcement of the foreign judgment shall bear the burden of making the showing that the foreign court’s exercise of personal jurisdiction comported with the due process requirements that are imposed on domestic courts by the Constitution of the United States. (c)

Judgment against provider of interactive computer service

(1)

In general

Notwithstanding any other provision of Federal or State law, a domestic court shall not recognize or enforce a foreign judgment for defamation against the provider of an interactive computer service, as defined in section 230 of the Communications Act of 1934 (47 U.S.C. 230) unless the domestic court determines that the judgment would be consistent with section 230 if the information that is the subject of such judgment had been provided in the United States. (2)

Burden of establishing consistency of judgment

The party seeking recognition or enforcement of the foreign judgment shall bear the burden of establishing that the judgment is consistent with section 230. (d)

Appearances not a bar

An appearance by a party in a foreign court rendering a foreign judgment to which this section applies shall not deprive such party of the right to oppose the recognition or enforcement of the judgment under this section, or represent a waiver of any jurisdictional claims. (e)

Rule of construction

Nothing in this section shall be construed to— (1)effect the enforceability of any foreign judgment other than a foreign judgment for defamation; or (2)limit the applicability of section 230 of the Communications Act of 1934 (47 U.S.C. 230) to causes of action for defamation.

4103.

Removal

In addition to removal allowed under section 1441, any action brought in a State domestic court to enforce a foreign judgment for defamation in which— (1)any plaintiff is a citizen of a State different from any defendant; (2)any plaintiff is a foreign state or a citizen or subject of a foreign state and any defendant is a citizen of a State; or (3)any plaintiff is a citizen of a State and any defendant is a foreign state or citizen or subject of a foreign state, may be removed by any defendant to the district court of the United States for the district and division embracing the place where such action is pending without regard to the amount in controversy between the parties.

4104.

Declaratory judgments

(a)

Cause of action

(1)

In general

Any United States person against whom a foreign judgment is entered on the basis of the content of any writing, utterance, or other speech by that person that has been published, may bring an action in district court, under section 2201(a), for a declaration that the foreign judgment is repugnant to the Constitution or laws of the United States. For the purposes of this paragraph, a judgment is repugnant to the Constitution or laws of the United States if it would not be enforceable under section 4102(a), (b), or (c). (2)

Burden of establishing unenforceability of judgment

The party bringing an action under paragraph (1) shall bear the burden of establishing that the foreign judgment would not be enforceable under section 4102(a), (b), or (c). (b)

Nationwide service of process

Where an action under this section is brought in a district court of the United States, process may be served in the judicial district where the case is brought or any other judicial district of the United States where the defendant may be found, resides, has an agent, or transacts business.

4105.

Attorneys’ fees

In any action brought in a domestic court to enforce a foreign judgment for defamation, including any such action removed from State court to Federal court, the domestic court shall, absent exceptional circumstances, allow the party opposing recognition or enforcement of the judgment a reasonable attorney’s fee if such party prevails in the action on a ground specified in section 4102(a), (b), or (c).

. (b)

Sense of Congress

It is the Sense of the Congress that for the purpose of pleading a cause of action for a declaratory judgment, a foreign judgment for defamation or any similar offense as described under chapter 181 of title 28, United States Code, (as added by this Act) shall constitute a case of actual controversy under section 2201(a) of title 28, United States Code. (c)

Technical and conforming amendment

The table of chapters for part VI of title 28, United States Code, is amended by adding at the end the following: 181.Foreign judgments4101. .