[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 449 Introduced in Senate (IS)]

111th CONGRESS
  1st Session
                                 S. 449

                        To protect free speech.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           February 13, 2009

 Mr. Specter (for himself, Mr. Lieberman, and Mr. Schumer) introduced 
the following bill; which was read twice and referred to the Committee 
                            on the Judiciary

_______________________________________________________________________

                                 A BILL


 
                        To protect free speech.

    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 
2009''.

SEC. 2. FINDINGS.

    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. 
        Such actions are intentional tortious acts aimed at United 
        States persons, even though the harmful conduct may have 
        occurred extraterritorially.
            (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 policymakers.
            (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 primarily 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 lawsuit if--
            (1) the writing, utterance, or other speech at issue in the 
        foreign lawsuit does not constitute defamation under United 
        States law; and
            (2) the person or entity which brought the foreign lawsuit 
        serves or causes to be served any documents in connection with 
        such foreign lawsuit on a United States person.
    (b) Jurisdiction.--The district court shall have personal 
jurisdiction under this section if, in light of the facts alleged in 
the complaint, the person or entity bringing the foreign suit described 
in subsection (a) served or caused to be served any documents in 
connection with such foreign lawsuit on a United States person with 
assets in the United States against which the claimant in the foreign 
lawsuit 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 underlying 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) 
        and if the conditions for release under that paragraph are 
        satisfied, damages shall 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 
                underlying foreign lawsuit.
                    (B) The costs, including reasonable legal fees, 
                attributable to the underlying 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 
which gave rise to the cause of action 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 from 
publishing, or discouraging employers, contractors, donors, sponsors, 
or similar financial supporters from employing, retaining, or 
supporting, 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 underlying foreign lawsuit 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 underlying foreign lawsuit which gave 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 foreign 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 first date on which papers 
        in connection with the foreign lawsuit described in section 
        (a), on which the cause of action is based, are served on a 
        United States person in the United States.

SEC. 4. APPLICABILITY.

    This Act applies with respect to any foreign lawsuit that is 
described in section 3(a) in connection with papers that were served 
before, on, or after the date of the enactment of this Act.

SEC. 5. DEFINITIONS.

    In this Act:
            (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 a 
        person or persons in a negative light, or have resulted in 
        criticism or condemnation of a person or persons.
            (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 
        or an agency of a foreign country, that grants or denies any 
        form of relief, including injunctive relief and monetary 
        damages, in a defamation action.
            (4) Foreign lawsuit.--The term ``foreign lawsuit'' includes 
        any other hearing or proceeding in or before any court, grand 
        jury, department, office, agency, commission, regulatory body, 
        legislative committee, or other authority of a foreign country 
        or political subdivision thereof.
            (5) United states.--The term ``United States'' means 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 suit or proceeding 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.
                                 <all>