[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




                                 
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