    [House Hearing, 111 Congress]
    [From the U.S. Government Publishing Office]

                                 LIBEL TOURISM

    =======================================================================

                                    HEARING

                                   BEFORE THE

                                SUBCOMMITTEE ON
                       COMMERCIAL AND ADMINISTRATIVE LAW

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                         ONE HUNDRED ELEVENTH CONGRESS

                                 FIRST SESSION

                                   __________

                               FEBRUARY 12, 2009

                                   __________

                                Serial No. 111-4

                                   __________

             Printed for the use of the Committee on the Judiciary

          Available via the World Wide Web: http://judiciary.house.gov

                           COMMITTEE ON THE JUDICIARY

                     JOHN CONYERS, Jr., Michigan, Chairman
    HOWARD L. BERMAN, California         LAMAR SMITH, Texas
    RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr.,
    JERROLD NADLER, New York                 Wisconsin
    ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
    MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
    ZOE LOFGREN, California              BOB GOODLATTE, Virginia
    SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
    MAXINE WATERS, California            DARRELL E. ISSA, California
    WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
    ROBERT WEXLER, Florida               STEVE KING, Iowa
    STEVE COHEN, Tennessee               TRENT FRANKS, Arizona
    HENRY C. ``HANK'' JOHNSON, Jr.,      LOUIE GOHMERT, Texas
      Georgia                            JIM JORDAN, Ohio
    PEDRO PIERLUISI, Puerto Rico         TED POE, Texas
    LUIS V. GUTIERREZ, Illinois          JASON CHAFFETZ, Utah
    BRAD SHERMAN, California             TOM ROONEY, Florida
    TAMMY BALDWIN, Wisconsin             GREGG HARPER, Mississippi
    CHARLES A. GONZALEZ, Texas
    ANTHONY D. WEINER, New York
    ADAM B. SCHIFF, California
    LINDA T. SANCHEZ, California
    DEBBIE WASSERMAN SCHULTZ, Florida
    DANIEL MAFFEI, New York
    [Vacant]

                Perry Apelbaum, Staff Director and Chief Counsel
          Sean McLaughlin, Minority Chief of Staff and General Counsel
                                     ------

               Subcommittee on Commercial and Administrative Law

                        STEVE COHEN, Tennessee, Chairman

    WILLIAM D. DELAHUNT, Massachusetts   TRENT FRANKS, Arizona
    MELVIN L. WATT, North Carolina       JIM JORDAN, Ohio
    BRAD SHERMAN, California             DARRELL E. ISSA, California
    DANIEL MAFFEI, New York              J. RANDY FORBES, Virginia
    ZOE LOFGREN, California              HOWARD COBLE, North Carolina
    HENRY C. ``HANK'' JOHNSON, Jr.,      STEVE KING, Iowa
      Georgia
    ROBERT C. ``BOBBY'' SCOTT, Virginia
    JOHN CONYERS, Jr., Michigan

                         Michone Johnson, Chief Counsel

                        Daniel Flores, Minority Counsel

                                C O N T E N T S

                                  ----------

                               FEBRUARY 12, 2009

                                                                       Page

                               OPENING STATEMENTS

    The Honorable Steve Cohen, a Representative in Congress from the
      State of Tennessee, and Chairman, Subcommittee on Commercial
      and Administrative Law.........................................     1
    The Honorable Trent Franks, a Representative in Congress from the
      State of Arizona, and Ranking Member, Subcommittee on
      Commercial and Administrative Law..............................     2

                                   WITNESSES

    Dr. Rachel Ehrenfeld, American Center for Democracy
      Oral Testimony.................................................    11
      Prepared Statement.............................................    12
    Bruce D. Brown, Esq., Baker and Hostetler, LLP
      Oral Testimony.................................................    15
      Prepared Statement.............................................    17
    Laura R. Handman, Esq., Davis Wright Tremaine, LLP
      Oral Testimony.................................................    41
      Prepared Statement.............................................    44
    Ms. Linda J. Silberman, Professor, New York University School of
      Law
      Oral Testimony.................................................    59
      Prepared Statement.............................................    61

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Prepared Statement of the Honorable John Conyers, Jr., a
      Representative in Congress from the State of Michigan,
      Chairman, Committee on the Judiciary, and Member, Subcommittee
      on Commercial and Administrative Law...........................     5
    Prepared Statement of the Honorable Peter King, a Representative
      in Congress from the State of New York.........................     6

                                    APPENDIX
                   Material Submitted for the Hearing Record

    Material submitted by the Honorable Steve Cohen, a Representative
      in Congress from the State of Tennessee, and Chairman,
      Subcommittee on Commercial and Administrative Law:
        Prepared Statement of the World Press Freedom Committee......    85
        Letter from John J. Walsh, Esq., Carter Ledyard and Milburn
          LLP........................................................    89
        Prepared Statement of the Association of American Publishers.    93
        Prepared Statement of the American Civil Liberties Union
          (ACLU).....................................................    99
        Prepared Statement of the American Jewish Congress...........   104
    Response to Post-Hearing Questions from Bruce D. Brown, Esq.,
      Baker and Hostetler, LLP.......................................   134
    Response to Post-Hearing Questions from Laura R. Handman, Esq.,
      Davis Wright Tremaine, LLP.....................................   151
    Response to Post-Hearing Questions from Linda J. Silberman,
      Professor, New York University School of Law...................   167
    Material submitted by the Honorable Peter King, a Representative
      in Congress from the State of New York:
        Prepared Statement of the 9/11 Families for a Secure America.   172
        Letter from Patricia S. Schroeder, the Association of
          American Publishers, Inc...................................   173
        Wall Street Journal article entitled ``Foreign Law and the
          First Amendment,'' by Floyd Abrams.........................   174
        Letter from Caroline Fredrickson, Director, Washington
          Legislative Office, and Michael W. Macleod-Ball, Chief
          Legislative and Policy Counsel, the American Civil
          Liberties Union (ACLU).....................................   176
        Letter from Abraham H. Foxman, National Director, the Anti-
          Defamation League (ADL)....................................   179
        Press Release from the American Jewish Congress..............   180
        Letter from Lynne E. Bradley, Director, Government Relations,
          the American Library Association (ALA).....................   183
        Letter from Paul B. Jaskot, CAA President and Professor of
          Art and Art History, DePaul University, and Linda Downs,
          Executive Director, the College Art Association (CAA)......   185
        Prepared Statement of various organizations..................   187
        Article entitled ``It Takes the Marketplace of Ideas to Win
          the War of Ideas,'' by Andrew C. McCarthy..................   189
        New York Post article entitled ``Rachel's Law,'' by Samuel A.
          Abady and Harvey Silverglate...............................   197
        New York Times article entitled `` `Libel Tourism': When
          Freedom of Speech Takes a Holiday,'' by Adam Cohen.........   199
        Washington Times editorial...................................   201
        Prepared Statement of Paul Alan Levy, Public Citizen
          Litigation Group, Public Citizen...........................   202
        Letter from Eric Rassbach, National Litigation Director, and
          L. Bennett Graham, Legislative and International Programs
          Officer, The Becket Fund for Religious Liberty.............   215
        Prepared Statement of Yasmine Lablou.........................   217
        Article entitled ``British libel laws: cutting off crucial
          information,'' by Richard N. Winfield......................   229
        Letter from John Whittingdale, OBE MP, Chairman, Culture,
          Media and Sport Committee, House of Commons................   232

                                 LIBEL TOURISM

                                  ----------

                          THURSDAY, FEBRUARY 12, 2009

                  House of Representatives,
                         Subcommittee on Commercial
                                and Administrative Law,
                                    Committee on the Judiciary,
                                                        Washington, DC.

        The Subcommittee met, pursuant to notice, at 11 a.m., in
    room 2141, Rayburn House Office Building, the Honorable Steve
    Cohen (Chairman of the Subcommittee) presiding.
        Present: Representatives Cohen, Johnson, Franks, and Coble.
        Staff present: Matthew Wiener, Majority Counsel; Richard
    Hertling, Minority Counsel; and Adam Russell, Majority
    Professional Staff.
        Mr. Cohen. This hearing of the Committee on the Judiciary,
    Subcommittee on Commercial and Administrative Law, will now
    come to order.
        Without objection, the Chair will be authorized to declare
    a recess of the hearing, and I suspect I will, as we have a
    special program honoring the 16th President of the United
    States at about 11:30. So, we are going to break at some point
    for that, and then come back and finish up.
        I will now recognize myself for a short statement.
        Last year, I introduced, and the House passed under
    suspension of the rules, H.R. 6146 to protect Americans' first
    amendment rights against the threat posed by libel tourism. We
    return to that subject matter today.
        Libel tourism is the name given to the practice of end
    running the first amendment by suing American authors and
    publishers for defamation in the courts of certain foreign
    countries. These countries have laws that often disfavor speech
    critical of public figures, countries with often little or no
    connection to the allegedly defamatory statements that gave
    rise to the suits.
        England has become the favorite destination of libel
    tourists from around the world, especially wealthy libel
    tourists from countries whose own laws are hostile to free
    speech. London has been called the libel capital of the world.
        England's otherwise admirable legal system attracts libel
    tourists for several reasons. Let me touch on the main one by
    way of introduction of the subject of today's hearing.
        Our Constitution's first amendment usually requires a
    defamation plaintiff to prove the falsity of a challenged
    statement. The first amendment is even more demanding when the
    defendant is a public figure--The New York Times, et cetera.
    The plaintiff must then prove actual malice--prove that the
    defendant made the defamatory statement, in the words of the
    U.S. Supreme Court, with ``knowledge that it was false or with
    reckless disregard as to whether it was false or not.''
        Not so under the English defamation laws. Under English
    laws, presume the defendant is wrong. It places the burden of
    proving the truth of an allegedly defamatory statement onto the
    defendant.
        This draconian feature of English law--a long way from the
    Magna Carta--has drawn criticism, not only from defenders of
    free speech in the U.S., but also from the United Nations, and
    even members of the U.K.'s own Parliament.
        The threat of English and other foreign defamation suits by
    libel tourists has not diminished since we introduced H.R.
    6146. If anything, it has grown, and is likely to grow stronger
    as the Internet continues to facilitate the free flow of
    information across national boundaries.
        Today's hearing will give Members of the Subcommittee the
    opportunity to address four main issues.
        First, what features of some foreign legal systems--
    especially England's--attract libel tourists?
        Second, how prevalent is libel tourism? Who are the libel
    tourists, and who are their American victims?
        Third, does libel tourism threaten the first amendment
    rights of Americans? And if it does, how and with what effect
    on public discourse about important matters of public concern?
        And finally, what should Congress do about libel tourism?
        As I mentioned in my earlier remarks, we passed this bill
    in the House. And the Senate never addressed it.
        To help us address these important and timely questions, we
    will hear from four distinguished witnesses.
        Our first witness will be Rachel Ehrenfeld, an author whose
    ordeal with libel tourism has helped bring this issue to the
    public's attention.
        Then Laura Handman and Bruce Brown, two prominent
    Washington media lawyers, who will testify about matters
    concerning the threat of libel tourism.
        Finally, Professor Linda Silberman of the NYU School of
    Law--one of the country's foremost experts on the enforcement
    of foreign legal judgments in our courts--will continue our
    discussion and hopefully suggest possible next steps.
        So, we have comity--not the Bob Hope variety, but the legal
    kind--and threats to the first amendment.
        Accordingly, I look forward to receiving today's testimony.
    And I now recognize my colleague, Mr. Franks, the distinguished
    Ranking Member of the Subcommittee, for his opening remarks.
        Mr. Franks. Well, thank you, Mr. Chairman.
        And Mr. Chairman, I sincerely appreciate you conducting
    this hearing. This is an important subject.
        Libel tourism is a specialized category of international
    forum shopping, which is the deliberate selection of a court
    that is known to rule favorably on a plaintiff's position. A
    typical scenario involves an author who writes a critical news
    story about a social or legal problem.
        As part of that story, the author exposes the illicit
    activity of an individual or group, possibly a person with an
    existing public profile--imagine that--seeking retribution
    against the author that the person or group files a defamation
    lawsuit in a forum known for its weak free speech laws.
        The plaintiff in this scenario is not really interested in
    obtaining a judgment to collect damages. Instead, the
    plaintiff's main goal is to dissuade anyone from researching
    and publishing other negative accounts about his or her
    activities.
        One of the witnesses today, Rachel Ehrenfeld, has
    experienced this first hand. In her book, ``Funding Evil,'' Ms.
    Ehrenfeld indicts the activities of Saudi billionaire, Khalid
    bin Mahfouz, for allegedly erecting a bank system and
    fraudulent charitable groups that fund the activities of Osama
    bin Laden and other terrorists.
        Although the book was published in New York, 23 copies were
    sold in Great Britain through Amazon.com, and the first chapter
    was accessible online internationally. Bin Mahfouz sued Ms.
    Ehrenfeld in London for defamation. She did not appear to
    contest the court's jurisdiction or the merits of the suit, and
    lost on summary judgment the following year.
        The British court awarded $225,000 in damages to bin
    Mahfouz, and ordered Ms. Ehrenfeld to apologize and destroy
    remaining copies of her book.
        Bin Mahfouz chose Great Britain to file a lawsuit because
    he knew British libel laws provide weak protection for free
    speech, relative to the United States. Since he could not win
    where the book was written and published, he manipulated the
    British legal system to serve his own purposes.
        Following the litigation in Federal and State court to
    declare the verdict unenforceable, the New York legislature
    passed the Libel Terrorism Protection Act in 2008. This statute
    provides that a foreign defamation judgment against a New
    Yorker will not be recognized unless the law applied in the
    foreign court provides as much protection for freedom of speech
    as the U.S. and the New York law.
        Interested parties, including Members of this Subcommittee,
    believe that other States and the Federal Government should
    follow New York's lead. If libel tourism is an ongoing threat
    to free speech, a more comprehensive response is needed.
        Last year, the House passed H.R. 6146, Chairman Cohen's
    libel tourism bill, which I co-sponsored. Under the Chairman's
    bill, no U.S. or State court may recognize or enforce a foreign
    defamation judgment regarding a public figure or public
    controversy, unless the foreign judgment is consistent with the
    first amendment in our Constitution. This dovetails with U.S.
    law, which generally denies enforcement of foreign judgments
    that are counter to State public policy.
        Other legislators and observers prefer a different
    approach, as reflected in bills introduced by Representative
    King of New York and Senator Specter of Pennsylvania. The
    distinguishing feature of their legislation is the creation of
    a new Federal cause of action link to the foreign defamation
    suit. Once the foreign plaintiff files a defamation action
    against an American defendant in a foreign court, the American
    citizen may then sue in U.S. district court, if the foreign
    suit does not constitute defamation under U.S. law.
        Injunctive relief, compensatory damages and attorneys' fees
    are available as remedies. Treble damages may be given, if the
    foreign litigant intentionally engaged in a scheme to suppress
    first amendment rights by discouraging publishers, or similar
    financial supporters, not to endorse the work of journalists,
    academics or other commentators.
        Now, we all want to support a response that does the best
    job of frustrating libel tourists. But in our efforts to craft
    such a legislation, we must be careful not to overreach.
        For example, legislation that creates a new Federal cause
    of action must comport with the Constitution guarantee of due
    process. We should not write a bill that allows a U.S. court to
    acquire jurisdiction over a foreign citizen, based exclusively
    on his decision to file a defamation suit against an American
    citizen in a foreign court. There must be greater legal
    contacts between the foreign litigant and the United States.
        These are issues that we should explore today, Mr.
    Chairman. We have a panel of witnesses who are well versed on
    the subject of free speech procedure and conflict of laws. I am
    confident that they will add their understanding of the subject
    matter.
        And Mr. Chairman, if libel tourism spreads, free speech
    will inevitably be muted. Journalists and publishers will be
    less willing to report on important and controversial stories
    that inform the public and inspire government action where
    appropriate.
        Founding Father Thomas Paine once said, ``Those who expect
    to reap the blessings of freedom must undergo the fatigues of
    supporting it.'' And that is our charge today. We must continue
    to support free speech by combating libel tourism.
        So, before I conclude, Mr. Chairman, I want to mention a
    related issue. In many other countries, there is little
    distinction made between defamation of an individual and
    defamation of an ideology or religion. Other nations do not
    have the same high respect for their freedom of speech that we
    have in the United States, and it is important that we protect
    Americans from any defamation judgment that uses standards that
    do not comport with our own.
        For example, many foreign governments have justified
    restrictions on freedom of speech or expression through
    blasphemy and religious defamation laws.
        One prominent example is that of Egyptian blogger, Abdel
    Karim Suleiman Amir, who was sentenced to 4 years in prison for
    criticizing President Mubarak and offending the religion of
    Islam.
        Similarly, author Mark Steyn faced charges of offending
    Canadian Muslims for an article from his book, ``America
    Alone,'' that Maclean's Magazine published last year.
        The movement for greater restrictions on freedom of speech
    or expression to protect religions rather the rights of
    individuals is one of the greatest threats to human freedom at
    this time, both internationally and in the United States, and
    one which shows how critically important it is that we look at
    the problem of libel tourism today. We must remain vigilant to
    protect Americans from any foreign defamation judgments.
        And thank you, Mr. Chairman, for you patience here, and I
    look forward to the witnesses' testimony.
        Mr. Cohen. I thank the gentleman for his statement. This is
    an ideal time and opportunity--and we had found it last year--
    for bipartisanship. So, unlike the vote we will probably take
    later today, we will have a good mix of blues and reds being
    all blues--or greens, or whatever.
        All Members shall have the opportunity to enter a
    statement, and opening statements will be included in the
    record.
    Prepared Statement of the Honorable John Conyers, Jr., a Representative
      in Congress from the State of Michigan, Chairman, Committee on the
     Judiciary, and Member, Subcommittee on Commercial and Administrative
                                      Law
        I am pleased that Chairman Cohen has scheduled this hearing on what
    has come to be called ``libel tourism.''
        Let me just make three quick points:
        First, libel tourism threatens the First Amendment rights of
    Americans to speak on matters of public concern.
        News web sites and internet book sales that can send published
    materials around the world dramatically increase the danger of being
    sued in a foreign court over something published in the United States.
        We'll hear about one such instance today in which the subject of
    the publication was financing terrorism.
        My hope is that this hearing will help lay the groundwork for a
    bipartisan bill.
        Second, I believe the best starting point for such a bill in this
    Congress is Chairman Cohen's H.R. 6146 from the last Congress, which I
    was pleased to co-sponsor.
        That bill would impose a limited--but critical--requirement on
    those who ask a U.S. court to enforce a foreign defamation judgment
    arising from speech on a matter of public concern: to prove that the
    foreign judgment is consistent with the First Amendment.
        And it would do this without interfering with the legal systems of
    other countries.
        Third, I look forward to hearing insights from the legal experts at
    today's hearing about the problem of libel tourism and what revisions,
    if any, should be made to H.R. 6146 before it is reintroduced.
        Thank you, Chairman Cohen.
                                   __________
        Mr. Cohen. And I think Mr. King had a statement, who was
    going to be a witness. And without objection, we will have that
    entered into the record.
        [The prepared statement of Mr. King follows:]
      Prepared Statement of the Honorable Peter King, a Representative in
                      Congress from the State of New York

                                   __________
        Mr. Cohen. Now, I am pleased to introduce the witnesses for
    today's hearing.
        The first witness is Ds. Rachel Ehrenfeld. As mentioned in
    the opening statement, she has been a subject--or an object--of
    libel tourism. She is the director of the New York-based
    American Center for Democracy and the Center for the Study of
    Corruption and the Rule of Law; the author of ``Funding Evil,
    How Terrorism is Financed and How to Stop It,'' ``Evil Money''
    and ``Narcoterrorism.''
        Dr. Ehrenfeld is an authority on the shadowy movement of
    funds through international banking and governments to fund
    terrorism--assuming that monies are still traveling through
    banking.
        She explores the challenges of economic warfare and
    international terrorism to democracy and freedom, and how money
    laundering and political corruption facilitates terror
    financing and economic tourism. She has authored hundreds of
    articles about these issues.
        She has testified before congressional Committees, as well
    as the European and Canadian parliaments on similar
    jurisdiction, provided evidence to the British Parliament and
    consulted with government agencies, such as the Department of
    Defense, Homeland Security, Treasury, Justice and the CIA. She
    has also organized and participated in conferences the world
    over, and is a member of the board of directors of the
    Committee on the Present Danger.
        Our second witness will be Mr. Bruce Brown. Mr. Brown is a
    former newsroom assistant to David Broder at The Washington
    Post, and Federal court reporter for The Legal Times. He joined
    the firm of Baker and Hostetler in the summer of 1997. Since
    then, he has worked primarily in the areas of libel defense,
    prepublication review, news-gathering, copyright and civil
    rights. He regularly assists the Society of Professional
    Journalists on freedom of information matters.
        In the area of prepublication review, he has worked on
    biographies of Supreme Court Justice Thurgood Marshall, former
    New York Mayor Rudy Giuliani--and imagine--musician John
    Lennon. His published work has appeared in The Washington Post,
    The American Lawyer, The Economist, The Legal Times and The
    Wall Street Journal, and has been interviewed on NPR and Court
    TV.
        Ms. Laura Handman will be the third witness. She is the co-
    chair of the Davis Wright Tremaine appellate practice,
    concentrates on media, intellectual property law, provides
    prepublication counseling and litigation services from
    complaint through trial and appeal to U.S. and foreign book,
    magazine, newspaper and electronic publishers and broadcasters.
        She has extensive experience in libel and privacy matters
    and brings recognized expertise to clients in array of
    copyright, trademark and first amendment issues. Also been on
    the America Radio Network. Her clients include the America
    Radio Network, Amazon.com, BBC, CNN, The Economist, FOX
    Television Stations, Inc., HarperCollins and the Random House.
        And our final witness is Ms. Linda Silberman. Professor
    Silberman joined NYU's School of Law faculty in 1971. First
    woman to receive a full-time tenure track appointment to the
    School of Law and the first woman tenured professor, full
    professor, at NYU School of Law when she received tenure in
    1977. She was named the Martin Lipton Professor of Law in 2001.
        Professor Silberman has approached all the subjects she
    teaches as a blend of the practical and the academic. Whether
    it is civil procedure, conflict of laws, family law or
    international litigation, she brings to the classroom her
    private practice background, her experience as an appellate
    lawyer, as a professor in residence at the Justice Department's
    Civil Division appellate staff, and her role as a special
    referee expert and consultant in a number of leading cases.
        She has participated in various State Department study
    groups, including the Hague Conference on choices of law
    applicable to international sales, the proposed Hague
    Convention on Jurisdiction and Judgments, and the Hague
    Convention on Choice of Court Agreements.
        So, as you can see, we have a very distinguished panel. We
    appreciate the willingness of all of you to participate in
    today's hearing.
        Without objection, your written statements will be placed
    in the record, and we ask that you limit your oral remarks to 5
    minutes. We have got a lighting system. And when it gets to
    yellow, you have a minute left. And then at red, Beulah pushes
    the buzzer, and you are off.
        After each witness has presented his or her testimony,
    Subcommittee Members will be allowed to ask questions, subject
    to the 5-minute limit.

                    TESTIMONY OF RACHEL EHRENFELD,
                     AMERICAN CENTER FOR DEMOCRACY

        Ms. Ehrenfeld. Thank you, Mr. Chairman and Members of the
    Committee for holding this hearing on libel tourism, which
    affects me personally. Special thanks to Mr. Cohen for inviting
    me.
        Sitting at my desk on January 23, 2004, I was interrupted
    by an e-mail from a law firm in London. This was no ordinary
    message. It was a letter threatening to sue me for libel in a
    British court for statements made in my book, ``Funding Evil:
    How Terrorism Is Financed and How To Stop It,'' about the Saudi
    billionaire, Khalid bin Mahfouz.
        The letter said that Mahfouz denied the allegations in my
    book that he funded al Qaeda and other Muslim terrorists
    organizations. Mahfouz's lawyers demanded my public apology or
    retraction, removing my book from circulation, legal fees and a
    donation to a charity of Mahfouz's choice. This was followed by
    further messages, faxes, mail and legal papers served.
        I am a scholar dedicated to exposing the enemies of freedom
    in Western democracies through publications, in books and
    articles. The psychological, emotional and financial effects of
    the threat of this libel suit against me in London will stay
    with me as long as I live.
        I refused to recognize the English court's jurisdiction
    over me. I did not believe that I should have to defend myself
    in a country where my book was not published or even marketed.
        Nevertheless, I was sued for libel in London, because 23
    copies of ``Funding Evil'' found their way to Britain, mostly
    through the Internet, which also carried the chapter of my
    book. In 2005, the British court granted Mahfouz a judgment by
    default, awarding him hundreds of dollars and other sanctions.
        Until the New York legislature passed the Libel Terrorism
    Protection Act last May, I spent many sleepless nights worried
    that Mahfouz will try to enforce the English judgment against
    me in New York. His deliberate non-enforcement left it hanging
    over my head like a sword of Damocles, which aggravated the
    chilling effects.
        Mahfouz also uses a dedicated Web site to advertise my
    judgment with more than 40 other names of those he threatened
    and sued in London.
        Mahfouz's suit has never been tried on the merit. Yet, the
    British judgment affected my ability to publish. The threat he
    wields over me, and over others, chilled American publishers,
    especially those with assets overseas, from publishing books
    containing information on terror financiers.
        Mahfouz also chilled my ability to travel to the U.K., lest
    I be arrested to enforce the British judgment against me. I run
    the same risk in Europe and in most Commonwealth states, due to
    their reciprocal enforcement of judgments.
        The Free Speech Protection Act includes provisions to
    countersue and damages. These are essential to remove the
    chilling effect of foreign libel suits, because they will serve
    as a deterrent to people contemplating to sue American writers
    and publishers in England or other foreign jurisdictions.
        Do you think Mahfouz would have sued me had he known I
    could countersue him and ask for damages? And would not that be
    true for others who sue the Americans in London or elsewhere?
        Today is a special day to have this hearing. We all know
    the significance of the man whose birthday we celebrate today.
    Lincoln was, among other things, a wonderful writer, who held
    this Nation together with his words that he published, and
    which we revere to this day.
        Imagine if he was intimidated, threatened and chilled from
    publishing those words by threat of foreign libel lawsuits. It
    is therefore fitting and proper that this Committee held this
    hearing about freedom of expression on Lincoln's birthday.
        I urge Congress to pass the Free Speech Protection Act,
    because it is fitting and proper that it should do so.
        [The prepared statement of Ms. Ehrenfeld follows:]
                     Prepared Statement of Rachel Ehrenfeld
        Thank you, Mr. Chairman and members of the Committee, for holding
    this hearing, which touches me personally. My special thanks to
    Chairman Cohen for inviting me. In addition to my oral testimony, I
    submit my written statement for the record.
        We are confronted by libel tourism--a pernicious and growing
    phenomenon, especially after the 9/11 attacks on America--whereby
    wealthy and corrupt terror financiers exploit plaintiff-friendly
    foreign libel laws and expansive Internet jurisdiction to silence
    American authors and publishers. Foreign libel laws have become a
    potent weapon used by the forces of tyranny who seek to undermine our
    freedom. The Free Speech Protection Act can stop this.
        In New York Times v. Sullivan, the Supreme Court struck a critical
    balance between libel actions and a free press guaranteed by the First
    Amendment. The high court raised the bar for libel plaintiffs to insure
    our ``profound national commitment to the principle that debate on
    public issues should be uninhibited, robust, and wide-open.'' Based on
    that principle, the court declared: ``libel can claim no talismanic
    immunity from constitutional limitations.''
        Outside the United States, there are no such ``constitutional
    limitations.'' The House of Lords explicitly rejected the Sullivan
    standard. So did the Canadian Supreme Court. Although all forty-one-
    member states of the Council of Europe submit to the European Court of
    Human Rights, Article 10 of its charter also rejects the Sullivan
    standard.
        In many countries, journalists can be jailed for criminal libel;
    truth is often not a defense; high office holders enjoy extra
    protection against criticism; publications can be confiscated;
    newspapers and broadcast stations can be shuttered; and writers can be
    forced to publish adverse court orders, and repudiate as false what
    they know to be true.
        Congress must protect American writers and publishers to guarantee
    the ``uninhibited, robust and wide-open'' debate the First Amendment
    was designed to protect. Scholars like me seek Congress's help to stop
    libel tourism from limiting our ability to write freely about important
    matters of public policy vital to our national security.
        I can attest that libel tourism is costly, financially and
    emotionally. I do not command an army--or control an industry--or have
    vast wealth--or hold political office. In other words, I do not possess
    any traditional sources of power in society. Instead, I write. I am a
    scholar dedicated to expose the enemies of freedom and Western
    democracy. I expend great time and effort tracking down information
    across the globe. My books and articles are based in large part on
    evidence presented to Congress, parliaments and courts. Like most
    responsible scholars, I publish only material that can be verified. My
    credibility and livelihood depend on it.
        In 1992, I published Narcoterrorism: How Governments Around the
    World Have Used the Drug Trade to Finance and Further Terrorist
    Activities, and first called attention to the intimate relationship
    between drug trafficking and terrorism.
        Terrorism is not cheap. To the contrary, it is a capital-intensive
    activity. It requires lots of cash for training, weapons, vehicles,
    salaries, cell phones, airline travel, food and lodging; etc. I showed
    how the drug trade, not just oil profits, fuels terrorist
    organizations. While policy makers were romanticizing the Palestine
    Liberation Organization as a group of so-called ``freedom fighters,'' I
    showed how the PLO filled its coffers with billions of dollars from
    heroin, hashish, airplane highjacking, extortion and illegal arms
    sales. Until my book, neither the American government nor international
    agencies for drug control publicly linked narcotics and terrorism.
        When asked why he robbed banks, Willy Sutton famously replied:
    ``Because that's where the money is.'' I followed his lead and followed
    the money. This led to my second book, Evil Money: The Inside Story of
    Money Laundering and Corruption in Government, Banks and Business, in
    which I connected the dots between drug profits, money laundering,
    political corruption, Islamic banking and how illicit funds are used to
    undermine democracies.
        The Committee undoubtedly remembers BCCI, the Bank of Credit and
    Commerce International, the cash till for Hezbollah, the PLO, HAMAS,
    Abu Nidal and other terrorist organizations. BCCI's chief operating
    officer was Saudi billionaire, Khalid bin Mahfouz, banker to the Saudi
    royal family and at that time, owner of the National Commercial Bank of
    Saudi Arabia. In 1992, Mahfouz paid $225 million to settle criminal
    charges against him in New York arising from his control of BCCI.
        In 2003, I published my third book, Funding Evil, How Terrorism is
    Financed and How to Stop It. In that book, I showed the true face of
    terrorism. It is not the stereotype of underprivileged Islamic youth
    yearning to be religious martyrs, but instead, an international network
    of corrupt dictators, drug kingpins, and villains like Mahfouz who
    transferred some $74 million to at least two front charities for
    terrorism: the International Islamic Relief Organization and his
    Muwafaq or ``blessed relief'' Foundation, which then gave the funds
    directly to al Qaeda, Hamas and other radical Muslim organizations.
        In response, Mahfouz sued me for libel. What happened to me did not
    occur in a dark backwater of totalitarian repression like Syria, Saudi
    Arabia, or North Korea, but in England. Mahfouz does not live there. I
    do not live there. My book was not published or marketed there.
    Nonetheless, the English court accepted jurisdiction because twenty-
    three copies of Funding Evil arrived in England via Internet purchases.
        English law does not distinguish between private persons and public
    figures. Allegedly, offensive statements are presumed defamatory and
    the libel defendant bears the burden to prove they are true. Official
    documents from non-English sources are typically inadmissible in court,
    and Arab dictatorships refuse to help Western writers and publishers
    prove allegations about terrorism.
        Protection of opinion is limited and multiple suits are allowed for
    a single act of publication. Libel defendants have limited pre-trial
    discovery and no right to depose plaintiffs under oath, as in American
    courts. Thus, libel plaintiffs usually win, verdicts are substantial,
    and defendants must pay the plaintiff's legal fees. It is no wonder
    then, the Times of London called London the ``libel capital of the
    Western world.''
        Mahfouz's threats conveyed by E-mails, faxes, and legal papers were
    unsettling, and on one occasion, I was warned to do as he demanded if I
    ``knew what was good for me'' because he has friends in high places who
    wield great influence in the U.S.
        I refused to recognize the English court's jurisdiction because I
    should not have to defend myself abroad. The British court granted
    Mahfouz a default judgment and awarded him hundreds of thousands of
    dollars; required me to prevent copies of Funding Evil from reaching
    Britain; and ordered me to publish retractions drafted by his
    solicitors.
        Libel tourism by Mahfouz and others like him made me realize
    something more was at stake than my book and the particulars involving
    him. In response, I sued Mahfouz in New York to declare his English
    judgment violated my rights under the First Amendment. That litigation
    led the New York Legislature last May to enact New York's version of
    the Free Speech Protection Act. Illinois followed suit last August.
        Until the new statute protected me--dubbed by the media as
    ``Rachel's Law''--Mahfouz's English judgment hung over my head like a
    sword of Damocles and kept me up at night.
        The United States has a tradition of almost automatic enforcement
    of foreign judgments under the doctrine of comity enshrined in the
    Uniform Foreign Money-Judgments Recognition Act adopted by a majority
    of states. Although writers can assert a First Amendment defense to
    enforcement actions, few have the economic resources to do so.
        Hence, libel tourism forces them to engage in self-censorship.
    Mahfouz's libel tourism in London led American publishers with assets
    abroad to cancel several books under contract or consideration. Those
    who once willingly courted my work now refuse to publish me. In nearly
    forty cases, Mahfouz obtained settlements against his victims, all with
    forced apologies, by the mere threat of libel litigation. His boasts
    about this on his website to effectively silence and intimidate his
    critics in the media and academia.
        Case law speaks of the ``chilling effect'' on free speech
    threatened by unrestrained libel actions. My case demonstrates the
    chilling effect is no mere abstraction. I cannot travel to the U.K.,
    lest I be arrested to enforce Mahfouz's extant judgment, and I run the
    same risk in Europe, due to the European Community's reciprocal
    enforcement of member states' judgments. Similar laws apply in most
    Commonwealth states, too.
        I close with the immortal words of Justice Brandeis in Whitney v.
    California:

            Those who won our independence believed that the final end of
            the state was to make men free to develop their facilities, and
            that in its government the deliberative forces should prevail
            over the arbitrary. . . . They believed that freedom to think
            as you will and to speak as you think are means indispensable
            to the discovery and spread of political truth. . . . Believing
            in the power of reason as applied through public discussion,
            they eschewed silence coerced by law--the argument of force in
            its worst form. Recognizing the occasional tyrannies of
            governing majorities, they amended the Constitution so that
            free speech and assembly should be guaranteed.

        A free press is vital not only to our lifestyles, but also, to our
    national security to protect writers like me who expose those who do us
    evil. New York and Illinois have enacted laws to protect their citizens
    from the scourge of libel tourism which threatens press freedom and
    scholars, writers and publishers everywhere. The federal Free Speech
    Protection Act insures all American citizens will enjoy such
    protection. Congress should pass it without delay.
                                   __________
        Mr. Cohen. Thank you very much for your statement.
        And I want to recognize a former Member, Congressperson Pat
    Schroeder who is here, and always honored to be in her
    presence. And I appreciate your brevity. It is something
    uncommon in this place.
        Mr. Brown?

                  TESTIMONY OF BRUCE D. BROWN, ESQ.,
                        BAKER AND HOSTETLER, LLP

        Mr. Brown. Thank you.
        It is a pleasure to be here today, and I thank the
    Subcommittee for its interest in finding a way to counter a
    growing and, so far unresolved, problem: the threat of libel
    tourism to first amendment interests in the U.S.
        It is a favorite line of London libel lawyers when they
    travel to conferences in the U.S. to quip with a nod to the
    great Johnny Cash, that they have just come from a town named
    Sue. That I have heard that same joke in different cities,
    coming from different English libel lawyers, tells you
    something about how well entrenched libel tourism has become.
        Speaking at these events with English lawyers about the
    historical differences in the way the two countries balance
    free speech with reputational interests has always been
    intellectually interesting, for sure. These differences, in
    fact, used to be solely the stuff of academic conferences and
    law review articles.
        But today, the importance of the distinction is far from
    abstract or theoretical, because today there are stories such
    as the one you just heard from author Rachel Ehrenfeld.
        Two principal things have happened. First, British judges
    have been exceptionally generous to libel plaintiffs from all
    parts of the world, who seek to use U.K. courts to hear their
    claims despite a tenuous connection on their part, or on the
    part of the defendant, to England.
        Second, publication over the Internet means that online
    content published in the U.S. and intended primarily for an
    American audience can be viewed anywhere around the globe,
    giving the English courts the thinnest of jurisdictional hooks
    for libel cases, but one that they have seized.
        London, therefore, has become the destination for a new
    class of libel litigant, who circumvents the strong free speech
    protections in our courts, and sues instead--or threatens to
    sue--in the U.K., where the standards are much weaker. Fear of
    substantial libel judgments in the U.K. plainly has a
    distorting impact on what is published here at home, stifling
    free speech in the U.S. on many important subjects. And so,
    libel tourism was born.
        The problem was in many ways predictable, as the U.S. and
    the U.K. traditions became more entangled in the online world.
    But the remedy thus far has been elusive. I am thrilled to see
    this Subcommittee pursuing one in this Congress.
        The written testimony you have from the other panelists and
    from me explains the incentives for a plaintiff to be in a U.K.
    court, highlighting the specific ways in which U.S. law is more
    protective than U.K. law in the libel area.
        While Rachel Ehrenfeld's story is well known, there are
    many others that are not, such as Humayun Mirza's. I tell his
    full story in my written statement, but let me briefly point
    out a few details.
        Mr. Mirza is the son of the first president of Pakistan. He
    retired after 30 years at the World Bank and wrote a biography
    of his father, from his home in Bethesda. The University Press
    of America based in Lanham, Maryland, published it in 1999.
        Mr. Mirza received a letter from the U.K. attorneys of his
    father's second wife, threatening to sue him in London. Each
    statement Mr. Mirza had written about her was founded on first-
    hand observation, decades of conversations with family members
    and Pakistani leaders, as well as State Department files.
        The book would unquestionably have been protected under
    U.S. law, and it was hardly distributed in the U.K. But Mr.
    Mirza was intimidated into withdrawing it, nonetheless.
        In a U.K. court, he would have had the burden of proving
    the truth of the statements--a daunting task regarding
    incidents that in some cases had taken place a half a century
    earlier in Pakistan. In a U.S. court, the first amendment has
    shifted this burden, and it is the plaintiff who must prove
    falsity.
        Moreover, as the wife of a former head of state, Mrs.
    Mirza, in a U.S. court, would have been a public figure
    required to prove that the allegedly defamatory statements
    about her were published with actual malice, or clear and
    convincing evidence that Mr. Mirza was aware that the
    statements were false or made them with reckless disregard for
    the truth.
        English courts have no such protections. So there
    ultimately was no case called Mirza v. Mirza in the U.K.,
    because Mr. Mirza and his publisher could not risk it.
        Countering the impact of libel tourism is not about second-
    guessing the British people for striking a different balance
    between free speech and reputation than we have. It is about
    making sure that foreign jurisdictions do not dictate to us how
    we should strike this balance for ourselves.
        I first met Laura Handman just over 10 years ago when she
    wrote a very important friend of court brief in the Matusevitch
    case, which I am sure we will hear about. I covered the case
    for Legal Times, and quoted the Wilmer Cutler lawyer who was
    representing Mr. Matusevitch pro bono.
        What he told me then could be said today about the whole
    libel tourism debate. ``This case is not about exporting
    American law. It is about importing British law.''
        And as the U.S. Supreme Court said, that is one of the
    reasons we fought a revolution.
        Thank you.
        [The prepared statement of Mr. Brown follows:]
                      Prepared Statement of Bruce D. Brown

                                   Exhibit A

                                   Exhibit B

                                   Exhibit C

                                   Exhibit D

                                   Exhibit E

                                   Exhibit F

                                   Exhibit E

                                   __________
        Mr. Cohen. Thank you, Mr. Brown.
        Ms. Handman?
        And we are going to do what we probably should do, which is
    to respect your time and our Committee schedule, and pass on
    recessing for the Lincoln event. I think he will understand.
        Ms. Handman?

                 TESTIMONY OF LAURA R. HANDMAN, ESQ.,
                       DAVIS WRIGHT TREMAINE, LLP

        Ms. Handman. Thank you. And I hope I do him justice.
        Thank you so much, Chairman Cohen and Ranking Member Franks
    and the other Members of the Committee, for inviting me to
    speak about an issue that has been a passion of mine for nearly
    20 years.
        I applaud the heroic determination of Rachel Ehrenfeld and
    the efforts of this Committee to address the growing problem of
    libel tourism. My support is coupled with the greatest respect
    for the international comity concerns that Professor Silberman
    will undoubtedly raise. And I have the greatest respect for the
    British common law, which is the very foundation and genius of
    our legal system.
        But I have had the dubious honor of being introduced by my
    British counterparts to English judges as the American lawyer
    who got, quote, our law, British libel law, declared repugnant.
    I garnered that reputation, because I was counsel in the only
    two decisions so far where American courts have refused to
    enforce British libel judgments.
        And I would like to take a moment to explain the Bachchan
    case, because its facts really highlight the differences.
        In 1991, I was asked by the late Gopal Raju whether I would
    represent India Abroad, a newspaper and wire service based in
    Manhattan, which served an audience of Indians living primarily
    in the U.S. He had just been hit with a judgment from a London
    court in a libel action brought by Ajitabh Bachchan, a member
    of one of India's most prominent families.
        To give you a sense of just how big a deal this family was,
    if you have seen the film ``Slumdog Millionaire,'' you will
    remember when the Bollywood star comes via helicopter to the
    slums and Jamal, locked in the latrine by his brother, dives
    into the hole in the floor so he can escape and get the star's
    autograph.
        That star, Amitabh Bachchan, was the brother of the
    plaintiff in this case. Both Bachchan brothers were intimates
    of Rajiv Gandhi, then India's prime minister.
        The story in India Abroad reported that the leading Swedish
    daily newspaper, Dagens Nyheter, had reported a new development
    in the widely publicized scandal involving alleged kickbacks by
    a Swedish munitions company to obtain Indian government
    contracts.
        India Abroad--should I wait for the----
        Mr. Cohen. Do not worry about that. That is something that
    you learn about in your fifth term. So, you can go ahead.
    [Laughter.]
        Ms. Handman. India Abroad reported that Dagens Nyheter had
    reported that a Swiss bank account belonging to the plaintiff
    had been frozen by Swiss authorities. Bachchan sued Dagens
    Nyheter and India Abroad in London. And the Swedish paper
    immediately issued a retraction and settled.
        India Abroad reported the retraction, but did not settle.
    That left India Abroad with no defense, because its sole source
    had said it had made a mistake.
        In the U.K., India Abroad had the burden of proving that
    the claims were true. With Dagens Nyheter having claimed--
    admitted it was false, that was not possible.
        It did not matter that the plaintiff was a quintessential
    public figure, or the subject matter was quintessentially of
    public concern, involving a political scandal reaching up all
    the way to the prime minister facing re-election. It did not
    matter that all that India Abroad did was publish an accurate
    story about what a highly respected newspaper had reported.
        In the U.S., plaintiffs could not possibly establish that
    India Abroad published with fault--any kind of fault,
    negligence or actual malice--since reliance on a reporting of a
    reputable news organization is what all news organizations do,
    should do, and what small newspapers like India Abroad must do.
        In England, particularly under the laws at the time, a
    mistake is a mistake. News organizations are essentially
    guarantors of accuracy, and India Abroad had to pay.
        These are not minor differences between our two bodies of
    law. These go to the core protections, the breathing space
    ensured by New York Times v. Sullivan for political speech.
        So, when Bachchan came to New York, no U.S. court had
    refused to enforce a foreign libel judgment. But Justice
    Shirley Fingerhood refused to do so, because, she said,
    ``England and the United States share many common law
    principles of law. Nevertheless, a significant difference
    between the jurisdictions lies in England's lack of an
    equivalent to the first amendment of the United States
    Constitution.''
        We did win six-to-one in Maryland in the Matusevitch case
    that Bruce Brown mentioned. But since these cases, the
    pilgrimage of libel plaintiffs--be it Britney Spears, Russian
    oligarch Boris Berezovsky, or Sheikh Khalid bin Mahfouz--they
    have all flocked to London.
        Virtually every demand letter we receive these days from a
    U.S. lawyer is now accompanied by one from a British solicitor.
    Libel tourism has only grown, as the Internet permits even a
    newspaper like the Washington Times, which sold zero hard
    copies in the U.K., to be sued in London by an international
    businessman based on several dozen hits in the U.K. on an
    Internet Web site about a story about a Pentagon report.
        In part because of Bachchan and Matusevitch, the British
    courts have moved a step away from strict liability and a step
    closer to fault. But with increasing economic pressures, fewer
    and fewer media companies--much less individual authors like
    Ms. Ehrenfeld--can afford the risk of a more than likely
    judgment against them in a British courtroom.
        In the case of Forbes, that could be three judgments, since
    they are currently being sued simultaneously in Ireland,
    Northern Ireland and England for the same story, by the same
    lawyer.
        That risk is further compounded by the English rule that
    makes the loser pay the winner's legal fees, as well as their
    own. With British solicitors charging rates as high as 1,300
    pounds per hour per lawyer, the result is predictable: U.S.
    media agreeing to outside settlements for cases that would have
    had no chance of success in the U.S.; and self-censoring, by
    either not writing about public figures known to be litigious,
    not engaging in investigative reporting; or not publishing in
    the U.K. at all.
        No one, not the audience in the U.S. or overseas, is well
    served by such a regime.
        I think that H.R. 6146 is an important step, making
    mandatory on the Federal level the Bachchan decision. I have
    suggested in my written testimony ways to enhance its remedial
    impact.
        Thank you very much. I look forward to your questions.
        [The prepared statement of Ms. Handman follows:]
                     Prepared Statement of Laura R. Handman

                                   __________
        Mr. Cohen. Thank you.
        Professor Silberman, you are recognized.

              TESTIMONY OF LINDA J. SILBERMAN, PROFESSOR,
                   NEW YORK UNIVERSITY SCHOOL OF LAW

        Ms. Silberman. Thank you.
        I would first like to thank you, Chairman Cohen, and the
    Subcommittee for inviting me to testify on this subject about
    which I have been thinking and writing for decades, and that is
    the recognition and enforcement of foreign judgments more
    generally.
        And I am delighted to see that this topic is going to be
    addressed at the Federal level.
        You may have seen the ALI project that I did with my
    colleague, Professor Lowenfeld, which offers a somewhat more
    comprehensive proposal for a Federal statute governing the
    recognition and enforcement of judgments more broadly. The ALI
    project represents the position of the Institute, but my
    statements and my written testimony are those of myself only.
        In the short time that I have, I would like to just make
    two points: one, the need for Federal law on this subject; and
    secondly, some suggestions about the libel tourism bill. As I
    said, I think the subject of recognition and enforcement of
    foreign judgments should be a subject of national, Federal law.
    And libel tourism is only one aspect of that.
        The United States has no bilateral or multinational treaty
    dealing with the recognition or enforcement of foreign
    judgments. And unlike the full, faith and credit obligation,
    which is owed to sister-state judgments, foreign country
    judgments are not subject to any constitutional or statutory
    requirement of recognition.
        Now, it is a curious history why the law on recognition of
    and enforcement of foreign country judgments has been treated
    as a matter of State law, especially when the only Supreme
    Court case on this subject says that it is a matter of
    relations between the United States and the foreign state.
        But because it has been left to State law, the same foreign
    judgment may be recognized and enforced in one State, and not
    in another. And the attempt at uniformity has been
    unsuccessful, because although they have used the Uniform Act,
    it has not been adopted by everyone. The adoptions, when they
    have occurred, are not uniform, and interpretations by State
    courts are not uniform. And I give in my written statement the
    example of the reciprocity requirement required by some States
    and not by others.
        So, a Federal law in this entire area is desirable. And I
    understand that this may be a first step.
        The second is on what to do about addressing the specific
    problem of libel tourism.
        H.R. 6146 is really a specific application of the principle
    adopted in every State of the United States, and indeed,
    principles adopted by almost every country, that a foreign
    country judgment may be refused recognition on grounds that the
    judgment is repugnant to the public policy of the enforcing
    State. And as we have heard, public policy has been used by
    States to refuse recognition and enforcement of a judgment.
        H.R. 6146 would make clear that, as a national matter,
    first amendment concerns trump the more general policy of
    recognizing and enforcing foreign country judgments. And I
    think this should be done at the national, at Federal level.
        My main critique of H.R. 6146, if I may, is that it does
    not distinguish those cases where, from a private international
    law and conflict of laws perspective, it is appropriate for
    courts in the United States to refuse to recognize judgments,
    and when it is not.
        And the example that I used is the Matusevitch case, which
    has already been referred to, because there the libel judgment
    was obtained by one resident of England against another, both
    of whom were Russian emigres.
        The libel was in England. The comments were published in an
    English newspaper. And the U.S. court, as we heard, refused to
    recognize the judgment, because of fundamental policy
    differences in U.S. and English law.
        But the question to be asked here is, when does a country
    have interests that are sufficiently implicated to warrant the
    application of its own policy?
        In the Matusevitch case, everything took place in England.
    And, yes, what is at stake are different English and American
    views about the appropriate balance between defamation
    protection and free speech. And in the Telnikoff case, it is
    England that has the relevant interest.
        There are, of course, other examples where a court in the
    United States would certainly be justified in concluding that
    its first amendment concerns should lead to non-recognition. My
    basic point only is that H.R. 6146 does not contain those
    nuances.
        I have also suggested that a comprehensive approach to
    recognition and enforcement of judgments would look at issues
    of jurisdiction, where the English courts are exercising
    exorbitant jurisdiction. We ought not to be enforcing those
    judgments. And I think that is a piece missing from the H.R.
    6146 as presently drafted.
        As you might expect from my earlier comments, I am highly
    critical of the attempts made in the other bills to authorize
    jurisdiction and to create a cause of action for declaratory
    judgment and these more aggressive remedies.
        The jurisdictional provisions in those bills, I think, are
    inconsistent with due process. And I think it is much too
    aggressive an assertion of U.S. jurisdiction, even in
    situations where we would say the U.S. interests are
    compelling.
        One need only be reminded of the possibility that an anti-
    suit injunction by a court in the United States may be met with
    the response of an anti-anti-suit injunction elsewhere. And I
    see no reason to elevate the stakes.
        And looking, I see my time is over. I just would urge the
    Committee to look at this issue somewhat more comprehensively
    in a larger context about the recognition and enforcement of
    judgment.
        Thank you very much.
        [The prepared statement of Ms. Silberman follows:]
                    Prepared Statement of Linda J. Silberman

                                   __________
        Mr. Cohen. Thank you, Dr. Silberman.
        And I will now recognize myself for some questions.
        You said there are some nuances in 6146 that you think
    should be changed, and it relates to this discretion and when
    to have an action arises to such that it should not be
    recognized here in our courts.
        Do you have language that you could recommend to us that
    you think would be definitive enough to give guidance to the
    courts?
        Ms. Silberman. Well, I probably ought to think a little bit
    about that, but something like when U.S. interests are
    undermined, or U.S. interests are affected.
        I mean, we are a system that develops these issues by
    common law. And there, conflict of law approaches recognize
    situations in which there are interests.
        I think the failure to give any kind of nuance here,
    something like when U.S. interests are affected, would allow
    judges to find those situations and avoid, with all respect,
    the Matusevitch case, which I myself think is an inappropriate
    use of the public policy exception. I mean, we probably differ
    in this group, but that is my view. And I think the interests
    there of England, however much we disagree with them, are
    appropriate.
        Mr. Cohen. You mentioned the other bills that have been
    introduced on the subject.
        Do you know of any precedents for a cause of action in
    American law being created by something happening in a foreign
    jurisdiction, in law----
        Ms. Silberman. Well, I do not know of a----
        Mr. Cohen.--in a court?
        Ms. Silberman. I do not know of a bill that has moved that
    way. Certainly, things can happen in a foreign country that
    affect persons in the United States. And depending upon what
    those persons have done. I mean, the----
        Mr. Cohen. But I do not mean what people have done as much
    as a foreign court's actions. Have the actions in a foreign
    court ever been such that they have been the cause for action
    in the United States in a court system as a response?
        Ms. Silberman. Well, of course we know the Yahoo! case in
    which the court ultimately dismisses that case. That is a case
    for a declaration--a declaration of non-recognition in
    precisely this situation--a declaration of non-enforcement,
    because of the judgment rendered by the French court against
    Yahoo!
        And I have to confess that I was--I had some consultations
    with Yahoo! in that situation. And indeed, I had suggested that
    an appropriate course might be a declaration of non-
    enforcement. And at the time I said, but I think there is
    serious question about whether or not you can get jurisdiction.
        At the time, I really did not have all of the facts. But
    the mere situation of bringing a suit because process is served
    on an American defendant is generally not thought to be a
    sufficient basis of jurisdiction.
        In the Yahoo! case we have a split decision in which the
    judges of the 9th Circuit on rehearing en banc, the majority of
    the judges thought that that would be enough. But a combination
    of judges who thought it would not enough, and concerns about
    ripeness--that is, that the threat was not immediate, there was
    no suggestion that they were going to try and force the
    judgment--led to the dismissal of the case.
        I mean, it is unfortunate, I think, that that case did not
    get to the Supreme Court of the United States. And if it did,
    we might have some guidance on that subject.
        Mr. Cohen. And you mentioned some problems with H.R. 5814,
    and the Senate bill, 2977, which I guess--I think are
    identical. The problem I take from your testimony, just that it
    causes us--it is overreaching in its response?
        Ms. Silberman. Well, it is two-fold. One, there is a
    provision on jurisdiction in that bill which I believe is
    unconstitutional.
        I think the notion that you can take jurisdiction, merely
    because someone who sued in a foreign court, and that same
    speech has been disseminated somewhere in the United States--I
    do not think is enough to get jurisdiction over that party who
    brought suit, used the foreign courts to bring suit, assuming
    that there was also speech in that country. They have not done
    anything, necessarily, in the United States--at least as our
    present jurisdictional principles State.
        The second thing I worry a great deal about is the notion
    of a clawback statute and treble damages. I mean, we have seen
    the attempted clawback from the other side, when the English
    passed a clawback statute many years ago in the antitrust area.
        Interestingly, that clawback statute has never been used by
    the English, and I think because they recognize that it is an
    aggressive attempt at regulating things that we may do in the
    United States with respect to our views about antitrust. Even
    if there are foreign defendants who act in the United States,
    the English do not think they should have treble damages. We
    do.
        The English passed a clawback statute, but it has never
    been used. And in our relationship with other countries,
    respect for our differences seems to me to be very important.
        It is one thing for us to say, we are not recognizing this
    judgment, because it affronts our public policy and affects
    U.S. interests. It seems to me it is perfectly right for us to
    do that.
        It is quite another thing, I think, to take these broad
    exercises, anti-suit injunctions, treble damages and clawback
    statutes. It shows no respect for a system that, although
    different than ours, is certainly a system that owes deference
    in situations where they have the strong interest.
        Mr. Cohen. Thank you, professor.
        And I now yield 5 minutes for questions to the Ranking
    Member, our friend, Mr. Franks.
        Mr. Franks. Well, thank you, Mr. Chairman.
        And Dr. Ehrenfeld, at the risk of asking a simplistic
    question, looking at this legislation and recognizing your
    personal experience, is there some one provision, or one
    central concept that you would say is most important? And does
    this bill address that effectively?
        Ms. Ehrenfeld. I think that, first of all, the principle of
    the law is good. However, having a law without any teeth,
    without any deterrence, is not good, because libel tourism will
    continue.
        I am not a lawyer, so I will not argue about the legal
    aspects of it. But the fact that Mr. bin Mahfouz has a Web site
    where he advertises--and he is not the only one--all the legal
    judgments against Americans and others, have a very strong
    chilling effect.
        And I do not think that the first amendment is similar to
    other civil laws. The United States, as far as I know, is the
    only country with strong protections of free speech. There is
    no other country with similar protections.
        And I think that should make this law different than all
    other laws that deal with jurisdiction and reciprocity. That is
    my opinion about this.
        I know that he had probably--not probably, most likely--
    would have not sued, had he known that this will actually reach
    Congress. And that is not a deterrent yet, because he is
    continuing to sue.
        And apparently, Mr. Tweed in England, I assume, is the one
    in Ireland who is suing everybody as long as he can do that.
        I think that without teeth the law will do very little. I
    think it is important to have some measure of deterrent.
        Mr. Franks. Well, I hope you continue to be involved. And
    we are sure grateful for you being here today.
        Ms. Ehrenfeld. Thank you.
        Mr. Franks. Professor Silberman, my last question is, you
    know, there is another subject related to libel tourism called
    religious defamation.
        For example, you know, you have authors who publish
    statements on religious themes under the mantle or provision of
    free speech, who are later prosecuted by foreign courts for
    blasphemy.
        And I am not suggesting this should be addressed in any way
    in this libel tourism bill, but there are some commonalities,
    there are some intrinsic parallels.
        And do you have any ideas how we might curtail the
    prevalence of the religious defamation cases, and what we
    should do about that, as well?
        Ms. Silberman. Well, you are quite right that there.
        One could find a number of different issues, where the
    assertion of jurisdiction and foreign libel, defamation laws
    affect a much broader set of issues, like the one you
    mentioned. And in some sense, this approach would address some
    of those.
        You will see it in the intellectual property area, as well.
    And it is one of the reasons that, you know, I urged a broader
    bill--I mean, it may fall on deaf ears. You have enough to do.
    But that, if one went at the subject of the recognition and
    enforcement of foreign judgment at the Federal level--that is,
    a comprehensive statute--I think you could address many of
    these different things.
        I think you would get uniform Federal law on this subject.
    I think you could nuance it sufficiently, so that it would
    apply when U.S. interests are affected. And I think it would
    stop the sort of disuniformity that is getting done now with
    this patchwork of different bills.
        Presently, you have a uniform act. Now you have a revised
    uniform act. Now you have the New York statute. You have the
    Illinois statute.
        This is a problem at the national level. It does involve--
    whether we differ or not--it does involve the relation between
    our country and other countries and other courts. And it should
    be the Congress that takes up and addresses this issue and
    decides what the appropriate realms of our interests are.
        Mr. Franks. Thank you, professor.
        And Mr. Chairman, thank you. I know that free speech is one
    of the great core foundations of this country. And I hope that
    we can be wise in our approach in how we protect it against
    whatever threats, whether they be foreign or otherwise. And I
    appreciate the panel for being here, and appreciate the
    Chairman for making this hearing possible.
        Mr. Cohen. Thank you, Mr. Franks.
        I now recognize--is there recognition sought by another
    member of the panel?
        Mr. Coble? You are recognized. The gentleman from North
    Carolina, where Duke was defeated by Carolina.
        Mr. Coble. Thank you. [Laughter.]
        Well, now, Mr. Merritt might take umbrage with that, since
    he is an avid Duke fan.
        Thank you, Mr. Chairman. Good to have the panel with us.
        Mr. Chairman, I want to thank the Chair for having
    recognized Pat Schroeder. Ms. Schroeder served as a
    distinguished Member of this Committee and a distinguished
    Member of the House of Representatives. And it is good to have
    you with us, Pat.
        And thank you, Mr. Chairman, you and Mr. Price, for having
    called this hearing.
        Dr. Ehrenfeld, are there any other cases that have been
    brought to your attention where American writers have been sued
    in other countries for books or works that were written and
    published in the United States?
        Ms. Ehrenfeld. Yes. Several authors that have been actually
    threatened with libel lawsuits by the same Saudi had contacted
    me when they received the letter, asking me, so, what do you
    do? How can you defend yourself? What to do?
        I also heard from others who not only were threatened to
    sue, and they had to apologize and retract--not only Americans,
    Canadians too. But also, people were sued in France by the same
    Saudi. He has a small industry. He keeps many lawyers busy and
    well paid.
        Yes, I have. And I know that it restricted their ability to
    publish other books. Especially, they were focused on national
    security matters, such as terrorism.
        Mr. Coble. Well, I thank you.
        Ms. Handman, with regard to Representative King's bill--
    that is 5814 in the 110th Congress--what triggering mechanism
    or other factor would provide U.S. courts with personal
    jurisdiction over a plaintiff who initiates a defamation suit
    in a foreign court?
        Ms. Handman. Well, an awful lot of the cases that we have
    been talking about, and that we talk about in our--is this on--
    that we talk about in our papers are actually U.S. citizens,
    who choose to go overseas to sue. So, there would clearly be
    jurisdiction over them, because they are U.S.-based.
        I think of a lot of the celebrities in Hollywood, for
    example, or a number of businessmen, U.S. businessmen, who have
    chosen to sue overseas, because of the favorable laws in
    England. So, even applying the most traditional due process
    mechanisms, those kinds of claims would be covered.
        And then it reaches further out there. A lot of these
    international businessmen have dealings in the U.S. You know,
    the case, for example, involving the Washington Times right
    now, where they did not publish in the U.K. They only published
    here, though--no hard copies of the Washington Times in the
    U.K.
        But there were Internet hits--40 of them, or so--in the
    U.K. That was brought by an international businessman, who was
    doing business with the provisional government in Iraq, who had
    many ties to U.S. businessmen. And he would be subject to the
    very traditional mechanisms of jurisdiction and due process to
    the claims either in this bill, and with the suggestions I have
    made to expand the declaratory judgment remedy, and then the
    existing bill, H.R. 6146, to include a declaratory judgment
    remedy.
        But staying within the jurisdictional limits of due
    process, I do agree with Professor Silberman, that that
    obviously is going to be the watchword. But it should be taken
    to the limits of due process. And it will be for the courts to
    decide whether someone who sues overseas, who files a lawsuit--
    who serves process here--has an expectation that he could be
    foreseeably brought to the U.S. to respond to a suit here.
        Mr. Coble. Okay. I thank you for that.
        Mr. Brown, in wake of the potential lawsuits, how would you
    advise an American writer preparing to write a book or an
    article or work? What advice or counsel would you extend?
        Mr. Brown. Get libel insurance, right? I mean, that is
    the----
        Ms. Ehrenfeld. You cannot----
        Mr. Brown. Yes. The first and foremost response to your
    question, I can remember hearing Rachel Ehrenfeld talk about
    her sleepless nights, wondering if the judgment against her
    would be enforced back in the U.S.
        I can recall, when I was representing Mr. Mirza, whose
    story I discussed in my written testimony, he spent an
    afternoon in his attic looking for his homeowner's insurance
    policy, to see if by chance--although he could not remember--
    but just to see if by chance there was some rider or provision
    in the policy that would give him coverage in the case that
    there was a libel judgment or a libel action instituted against
    him. He, like Dr. Ehrenfeld, was terrified of the potential
    financial repercussions.
        And as Laura and I can both tell you and tell the
    Subcommittee, when we advise clients who are publishing on any
    matter of global concern today, whether it is international
    finance or global terrorism, or anything related to the world
    of celebrities or high-profile people, you go into it today
    assuming that you have got to keep your eye on U.S. law, as
    well as the law of the U.K., because of the growing problem of
    lawsuits in that jurisdiction.
        And I would just like to add one quick note on the personal
    jurisdiction issue. When we talked--you had asked the question
    about triggering mechanisms.
        There is an analog here, I think, to the alien tort
    statute, that if Congress were to contemplate creating some
    kind of substantive cause of action for conduct that took place
    entirely overseas, the alien tort statute provides a perfect
    example--and it has been around for 200 years--of Congress
    creating subject matter jurisdiction for this kind of conduct.
        And, under the alien tort statute, there have been cases
    where foreigners have been served with papers while in the
    United States. That is one of the truest and surest ways to get
    personal jurisdiction over someone.
        And you may remember that Dr. Karadzic was personally
    served with an alien tort case when he had just finished dining
    out at a New York restaurant in the 1990's. And that is a
    wonderful example of how U.S. law, when it has a bite like a
    substantive cause of action in the alien tort statute, can
    ensure that people who visit our country ultimately have to
    answer to our laws.
        Mr. Coble. Thank you, sir.
        Mr. Chairman, I see the red light. Can I put a quick
    question to Professor Silberman?
        Mr. Cohen. Without objection.
        Mr. Coble. I thank you for that.
        Professor Silberman, while we are all concerned about
    foreign suits that raise enormous concerns for American
    writers, can you tell us whether you are familiar with any
    foreign libel plaintiffs who were seeking to enforce their
    judgments here?
        Ms. Silberman. I do not know of any offhand. I think maybe
    some of the other witnesses who do handle these cases are more
    likely to know than I.
        Mr. Coble. Anyone else want to weigh in on that?
        Ms. Handman. The two cases that I----
        Mr. Coble. Briefly, because the Chairman has given me an
    extra time.
        Ms. Handman. Sure. The two cases I was involved in, in
    Bachchan and Matusevitch, they had both come here to the U.S.
    to enforce that judgment.
        So, those are--and then, those decisions came out, and that
    has had something of an in terrorem effect, I think,
    discouraging people from coming here. And that leaves Ms.
    Ehrenfeld in the untenable position she is in, because bin
    Mahfouz has not come here to enforce the decision. He just has
    it on his Web site as a cautionary note to all writers who want
    to write about him.
        Mr. Coble. Oh, gotcha. Okay. Thank you all.
        Thank you, Mr. Chairman.
        Mr. Cohen. Thank you, sir.
        I am going to ask a few more questions, a second round, if
    anybody else wants to.
        But, Mr. Brown, have the English courts ever declined
    jurisdiction over American authors, under the theory that we
    have a different standard here, and they take that into
    consideration at all?
        Mr. Brown. I am not familiar with those cases. There may be
    one in some of the written testimony, where there have been
    examples of English courts backing down on personal
    jurisdiction grounds.
        Laura, do you have----
        Ms. Handman. Yes. I was an expert in one of them for
    Barron's in London in the Osicom Chadha case, which I mention
    in my testimony.
        There, they did find jurisdiction over a California
    technology company and its president. But they exercised forum
    non conviens, and dismissed it based on forum non conviens,
    which is a discretionary basis, saying that the bulk of
    witnesses and testimony would be overseas.
        That has been more the exception than the rule in London,
    in my experience in these cases.
        Mr. Cohen. Professor Silberman, do you want to comment?
        Ms. Silberman. There are some examples with respect to
    abstention, both in Canada and the United States. The only
    thing I wanted to say is that, the suggestion that I made about
    adding to the bill a provision that said we would not recognize
    a judgment when the foreign court exercised what we might
    characterize as exorbitant jurisdiction from the U.S. point of
    view.
        And that might well be situations where the publication is
    in the U.S., and it gets picked up, and there are a few hits on
    the Internet site. The Europeans, the English, they have
    jurisdiction in a very different way than we do. They will take
    jurisdiction in those kinds of cases.
        It is true that most of those countries--Australia and
    England, I know--will issue damages only for the amount of
    injury that occurs in their jurisdiction, unlike in the U.S.
    But nonetheless, that has the in terrorem effect that we were
    talking about.
        But a provision that said, when a foreign court exercises a
    jurisdiction--it exercises jurisdiction on a basis that is
    perceived as unreasonable in the United States, we would not
    recognize that judgment.
        I think that is, in fact, the law in the various States as
    well, but its interpretation differs.
        Mr. Cohen. Let us assume you sold a lot of books in
    England, and it was--still, they ruled against you.
        Isn't it just as much an infringement on the American
    belief in your right to express your thoughts? And should not
    that judgment over there, even though there was a lot of
    damages there, still should not have--still be unenforceable
    here, because it is inhibiting our speech?
        Ms. Silberman. Yes, if in fact if it inhibits our speech,
    yes.
        I am merely suggesting that there are really two prongs. I
    was not suggesting jurisdiction as a substitute for public
    policy. I was really suggesting, as the law is now, that there
    is a defense on grounds of public policy, and there is a
    defense on grounds of an unreasonable exercise of jurisdiction.
        Mr. Cohen. Dr. Ehrenfeld talked about teeth. If we
    permitted attorneys' fees, would that not be--I mean, maybe
    they would be like, you know, tiny, baby teeth. But they would
    be teeth.
        Would that be something that would be okay?
        Ms. Silberman. Attorneys' fees----
        Mr. Cohen. When you bring the action. You bring an action
    to--say they want to enforce their judgment, and you are
    bringing your action under our laws, and it is unenforceable.
        And if you are successful in saying that--because they try
    to bring their action here to enforce their judgment. And they
    are thwarted because of our law, that then they have to pay
    attorneys' fees to the prevailing party here.
        Ms. Silberman. That is certainly teeth. And we certainly
    have given awards for prevailing parties in other situations
    when we deem that necessary. Yes.
        Mr. Cohen. Do you both agree, Ms. Handman and Mr. Brown?
    Something that would be acceptable?
        Ms. Handman. Yes, your honor, that is indeed what I----
        Mr. Cohen. I like that. But this is America, not England.
    [Laughter.]
        Ms. Handman. Sorry. It is a habit.
        Mr. Chairman, yes, that is the amendment that we have
    suggested. And it would give teeth. And it is very similar to
    anti-SLAPP statutes, which are now in 25 States, where there
    are attorneys' fees when someone brings an action that burdens
    speech, which indeed, this would be a classic example of.
        And I would suggest that the attorneys' fees should be able
    to reach any fees that were encountered in the British action
    as well, or the overseas action as well, any incurred there.
    That would put a little extra teeth in it, not just for
    defending the enforcement action, but also for whatever was
    incurred overseas.
        And in a way, it is only fitting, given that the British
    have that rule of fee shifting that is in place, and has had a
    huge impact on American suit over there.
        Mr. Cohen. Yes, that caught my attention when it was
    mentioned in the testimony. And it certainly would be a good--
    it would be teeth, and it would work with Dr. Ehrenfeld. And
    then that--you know, I did the SLAPP suit statute in Tennessee.
        Ms. Handman. Oh, congratulations.
        Mr. Cohen. So, yes. Thank you. A strategic lawsuit against
    Pickford. And they did not really like that too much.
        Mr. Brown?
        Mr. Brown. And maybe I could just add to that. In my
    written testimony, I discuss the different outcomes involving
    lawsuits brought against Cambridge University Press in the
    U.K., and Yale University Press in California. They are both
    involved in books dealing with the financing of global
    terrorism.
        In the Cambridge case, the books were destroyed. Cambridge
    capitulated and wrote a very self-serving, apologetic letter to
    Mr. bin Mahfouz, who was the plaintiff there, which Mr. bin
    Mahfouz has well publicized.
        In the Yale case--Yale was in California--they had access
    to the California anti-SLAPP statute, which they used, and they
    filed a motion to dismiss the case. And the plaintiff in that
    case ended up dismissing, even before the court had an
    opportunity to hear the anti-SLAPP motion.
        And as a colleague of mine pointed out to me just
    yesterday, the lawyer for the plaintiff in that case said,
    sounding more like a Harvard quarterback, that ``Yale came at
    us hard.'' And that is why they decided to drop their action in
    the face of the anti-SLAPP motion.
        So, it is quite effective, that fee-shifting provision
    there.
        Mr. Cohen. Yes, Dr. Ehrenfeld, please?
        Ms. Ehrenfeld. In the case of Cambridge University Press,
    interesting to note that the lawyers for bin Mahfouz were asked
    why did he sue only the publishers and not the American authors
    of the book. They were not sued.
        And he responded that, because Cambridge University is here
    in England, it is easy to sue. ``It is difficult to sue
    American writers now.'' This was following the New York
    legislation.
        So, it seems that was a deterrent.
        But in spite of what happened in Cambridge, and despite the
    big publicity, there are the authors--or one author, the living
    author of Cambridge--of ``Alms for Jihad,'' the book that
    Cambridge University pulled--cannot get a publisher here in the
    U.S., because they are afraid that it will reach England, and
    the publishers do not want to publish it. It is a very good
    book. It should be published.
        In addition, there are--Cambridge University Press actually
    defamed the authors, the American authors. But they cannot take
    action against it, because they do not want to get involved in
    expensive lawsuits.
        So, the more deterrence we have, the bigger the teeth, I
    think, the better it will be.
        Mr. Cohen. So, you like the attorneys' fees idea.
        Ms. Ehrenfeld. I do.
        Mr. Cohen. And what if we require kind of a role reversal,
    the attorneys to give a third of whatever they get back to
    their client? [Laughter.]
        Ms. Ehrenfeld. You have to ask the attorneys here.
    [Laughter.]
        Mr. Cohen. That would lose the Bar's support. We cannot do
    that.
        Has English defamation law at all changed and moved more
    toward our type of first amendment protections, Ms. Handman?
        Ms. Handman. Yes, congressman, it has. And I take some
    small measure of credit for that. I do think the decisions in
    the U.S. have had that effect, and that is what I am told by my
    colleagues who practice there.
        But it is nowhere near where our law is. The burden of
    proving truth is still on the defendant.
        The Reynolds case, which is the case that has allowed some
    small measure of fault to be considered, so that if you make a
    mistake, but if you did all the things that the Reynolds court
    said--get comment, act fairly, a whole host of, a list of sort
    of what constitutes responsible journalism--then--and it is a
    matter of public concern--and they define that very narrowly,
    so that much of what in America would be deemed a matter of
    public concern would not fit within that definition--then
    there, even though you made a mistake, you may well be not
    liable.
        And that was the case in the Jameel case that was recently
    decided for Dow Jones.
        But in that case, even--what it is is a standard very
    different than what the actual malice standard is. Actual
    malice is basically deliberate falsehood. It is knowing it is
    false, or having serious doubts about the truth, and publishing
    it anyway.
        It is basically a bad faith kind of defense, and it is
    subjective. It is what is in the reporter's head.
        It is not a ``what do good journalists do'' standard, which
    is more like a negligence standard. That is a lower bar.
        But when there are public figures in the U.S., they have to
    prove that higher bar. And it is intentionally so, because that
    is the ability to make mistakes, basically, is what New York
    Times v. Sullivan enshrined.
        So, they are not anywhere near that. And that is what I
    hear from my colleagues over there. And that is my own
    perception. Even the lawyers who got that great decision in the
    Jameel case say, we are nowhere where you are, even on that
    false standard.
        And also on opinion, they have a sort of reasonableness
    test. We have, basically, if it is not a statement provable as
    true or false, it is opinion. And you cannot be sued for it.
    And then the judge does not get to say whether it is a good
    opinion or a bad opinion. That is a huge difference also.
        And there are many other smaller things like that, in terms
    of jurisdiction, in terms of statute of limitations, that make
    a huge difference as well.
        But those are the main things, and it is really not
    anywhere near where we are yet.
        Mr. Cohen. Thank you.
        Who wants to comment?
        Professor?
        Ms. Silberman. If I could, just briefly. Of course, they
    are changing. I think we have seen that. The European
    Convention on Human Rights and the International Covenant of
    Civil and Political Rights are having an impact on the laws of
    many countries.
        And I think it is important to remember that when we talk
    about what I characterized as the nuances, how far we want to
    go, and who is affected, whether it is a foreign plaintiff,
    whether it is an English plaintiff who is injured in England.
        I mean, we could just take the mirror image. Imagine a
    place that had no protection for libel law, no defamation law
    whatsoever. And they publish here, and a U.S. citizen is
    injured and wants to sue for defamation. It meets with our
    standards, and so there would be a cause of action, but there
    would be no protection under the foreign law, and the United
    States issues a judgment.
        I mean, we would think that we had the relevant interest
    when there was a publication here, and there was a U.S.
    plaintiff. We would think we had every right to regulate that,
    regardless of what had been done in the other country.
        And so, I just suggest, as I often do in these kinds of
    cases, for us to stand in the shoes of the other country, and
    look at where the publication is, who is the resident. All of
    those things will be relevant in terms of the public policy.
        And I think it is important that these changes are
    occurring, and that there are not quite the same wide gaps of
    difference in the libel laws.
        Mr. Brown. And I would just add to that. I think--briefly--
    that the fact that we are here today is something that is
    putting pressure on U.K. lawmakers.
        I think you will see in the written testimony that there
    have been debates in Parliament quite recently about the
    phenomenon of libel tourism. And I think there are many M.P.s
    who are embarrassed by what they see happening in the U.K.
    courts. And I think the publicity we are giving to the issue
    today is another thing that will help perhaps reform U.K. libel
    law.
        But the Reynolds defense that Laura mentioned, it is only
    10 years old. We have had 45 years' experience under New York
    Times v. Sullivan.
        But I would say that, as it has been described by some, as
    a test in which judges look back after publication and make
    some kind of evaluation about whether a publication was fair,
    fairness is not a concept in American libel law.
        And for those of us who practice in this area, one of the
    most famous articulations of that is Judge Leval in the famous
    Westmoreland case, who said that a publication can be
    relentlessly one-sided and unfair, and still be protected by
    the actual malice rule. And I think that, in all likelihood,
    the Reynolds defense will never catch up with where actual
    malice is.
        And one final point. I think just another twist in U.K.
    libel law is that they still routinely enjoin authors and
    publishers. And I think there is nothing more perverse than the
    fact that Dr. Ehrenfeld here, who made no intent at all to have
    her book published in the U.K., is now, I understand it, still
    under an injunction, right, and could be held in contempt of
    court, if a book that she never intended to be available to a
    U.K. audience, somehow is published there again, or is
    available there again.
        And I cannot imagine a more perverse miscarriage of justice
    than that.
        Mr. Cohen. Doctor?
        Ms. Ehrenfeld. Regarding the Jameel case and the changes in
    the British law, the decision--Lord Hoffman said in that case--
    and I think the decision was that the measure is how
    responsible the reporters report. So, who will decide who is a
    responsible reporter? Should we leave it to the court? That is
    an important question.
        So, I do not think that that is a real movement toward a
    change, but it is not really change.
        Regarding other changes, I understand that the British Bar
    is now discussing changes in the structure of payment of
    defendants in libel lawsuits. That is, as far as I know, the
    changes that they are discussing, but not really about the
    libel laws themselves.
        Mr. Cohen. Thank you. I do not believe there are any
    further questions.
        And if not, I would like to thank all the witnesses for
    their attendance and their testimony.
        Without objection, Members will have 5 legislative days to
    submit any additional written questions, which we will forward
    to the witnesses and ask that you answer as promptly as you
    can. They will be made part of the record.
        The record will remain open for 5 legislative days for the
    submission of any other additional materials. Materials have
    been forwarded to us, and the request had been made to have
    them included in the record. And without objection, they will
    be made so.
        A statement from the World Press Freedom Committee with
    appendices; a letter from John J. Walsh to me; a statement from
    the American Association of American Publishers; a statement
    from the American Jewish Congress; and a statement from the
    American Civil Liberties Union.
        Without objection, that is done.
        [The information referred is available in the Appendix.]
        Mr. Cohen. I thank everyone for their time and patience.
    This hearing of the Subcommittee on Commercial and
    Administrative Law is adjourned.
        [Whereupon, at 12:14 p.m., the Subcommittee was adjourned.]
                                A P P E N D I X

                                  ----------

                   Material Submitted for the Hearing Record

            Prepared Statement of the World Press Freedom Committee

        Letter from John J. Walsh, Esq., Carter Ledyard and Milburn LLP

          Prepared Statement of the Association of American Publishers

        Prepared Statement of the American Civil Liberties Union (ACLU)

               Prepared Statement of the American Jewish Congress

         Response to Post-Hearing Questions from Bruce D. Brown, Esq.,
                            Baker and Hostetler, LLP

        Response to Post-Hearing Questions from Laura R. Handman, Esq.,
                           Davis Wright Tremaine, LLP

    Response to Post-Hearing Questions from Linda J. Silberman, Professor,
                       New York University School of Law

          Prepared Statement of the 9/11 Families for a Secure America

                      Letter from Patricia S. Schroeder,
                  the Association of American Publishers, Inc.

       Wall Street Journal article entitled ``Foreign Law and the First
                          Amendment,'' by Floyd Abrams

      Letter from Caroline Fredrickson, Director, Washington Legislative
       Office, and Michael W. Macleod-Ball, Chief Legislative and Policy
               Counsel, the American Civil Liberties Union (ACLU)

               Letter from Abraham H. Foxman, National Director,
                        the Anti-Defamation League (ADL)

                Press Release from the American Jewish Congress

         Letter from Lynne E. Bradley, Director, Government Relations,
                     the American Library Association (ALA)

    Letter from Paul B. Jaskot, CAA President and Professor of Art and Art
     History, DePaul University, and Linda Downs, Executive Director, the
                         College Art Association (CAA)

                  Prepared Statement of various organizations

    Article entitled ``It Takes the Marketplace of Ideas to Win the War of
                         Ideas,'' by Andrew C. McCarthy

               New York Post article entitled ``Rachel's Law,''
                   by Samuel A. Abady and Harvey Silverglate

      New York Times article entitled `` `Libel Tourism': When Freedom of
                    Speech Takes a Holiday,'' by Adam Cohen

                           Washington Times editorial

    Prepared Statement of Paul Alan Levy, Public Citizen Litigation Group,
                                 Public Citizen

    Letter from Eric Rassbach, National Litigation Director, and L. Bennett
    Graham, Legislative and International Programs Officer, The Becket Fund
                             for Religious Liberty

                      Prepared Statement of Yasmine Lablou

          Article entitled ``British libel laws: cutting off crucial
                                information,''
                             by Richard N. Winfield

           Letter from John Whittingdale, OBE MP, Chairman, Culture,
                  Media and Sport Committee, House of Commons

                                   ATTACHMENT