1.This Act may be cited as the
Free Speech Protection Act of
2009
.
2.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.
3.
(a)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)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)
(1)Order to bar
enforcement and other injunctive reliefIn 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)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)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)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)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)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)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.
4.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.
5.In this Act:
(1)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)The term foreign country means any country
other than the United States.
(3)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)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)The term United States means the several
States, the District of Columbia, and any commonwealth, territory, or
possession of the United States.
(6)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.