    [Senate Hearing 111-586]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 111-586

     ARE FOREIGN LIBEL LAWSUITS CHILLING AMERICANS' FIRST AMENDMENT RIGHTS?

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

                                    HEARING

                                   before the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                         ONE HUNDRED ELEVENTH CONGRESS

                                 SECOND SESSION

                                   __________

                               FEBRUARY 23, 2010

                                   __________

                              Serial No. J-111-73

                                   __________

             Printed for the use of the Committee on the Judiciary

                      U.S. GOVERNMENT PRINTING OFFICE
    57-951 PDF                WASHINGTON : 2010
    -----------------------------------------------------------------------
    For sale by the Superintendent of Documents, U.S. Government Printing
    Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC
    area (202) 512-1800 Fax: (202) 512-2104  Mail: Stop IDCC, Washington, DC
    20402-0001

                           COMMITTEE ON THE JUDICIARY

                      PATRICK J. LEAHY, Vermont, Chairman
    HERB KOHL, Wisconsin                 JEFF SESSIONS, Alabama
    DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
    RUSSELL D. FEINGOLD, Wisconsin       CHARLES E. GRASSLEY, Iowa
    CHARLES E. SCHUMER, New York         JON KYL, Arizona
    RICHARD J. DURBIN, Illinois          LINDSEY GRAHAM, South Carolina
    BENJAMIN L. CARDIN, Maryland         JOHN CORNYN, Texas
    SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
    AMY KLOBUCHAR, Minnesota
    EDWARD E. KAUFMAN, Delaware
    ARLEN SPECTER, Pennsylvania
    AL FRANKEN, Minnesota
                Bruce A. Cohen, Chief Counsel and Staff Director
                      Matt Miner, Republican Chief Counsel

                                C O N T E N T S

                                  ----------

                        STATEMENTS OF COMMITTEE MEMBERS

                                                                       Page

    Franken, Hon. Al, a U.S. Senator from the State of Minnesota.....     3
    Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........     3
    Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
        prepared statement...........................................    87

                                   WITNESSES

    Brown, Bruce D., Partner, Baker Hostetler, LLP, Washington, DC...     6
    Wimmer, Kurt A., Partner, Covington & Burling LLP, Washington, DC     3

                             QUESTIONS AND ANSWERS

    Responses of Kurt A. Wimmer and Bruce D. Brown to questions
      submitted by Senator Whitehouse................................    24

                           SUBMISSIONS FOR THE RECORD

    American Civil Liberties Union, Michael W. Macleod-Ball, Chief
      Legislative and Policy Counsel, Washington, DC, statement......    27
    American Library Association, Lynne E. Bradley, Director,
      Washington, DC, letter.........................................    32
    Brown, Bruce D., Partner, Baker Hostetler, LLP, Washington, DC,
      statement and attachment.......................................    34
    Ehrenfeld, Rachel, Director, American Center for Democracy,
      Washington, DC, statement......................................    82
    Rachlin, Robert D., essay........................................    90
    Rendleman, Doug, Professor, Law at Washington and Lew Law School,
      Lexington, Virginia, statement.................................   124
    Wimmer, Kurt A., Partner, Covington & Burling LLP, Washington, DC   125

     ARE FOREIGN LIBEL LAWSUITS CHILLING AMERICANS' FIRST AMENDMENT RIGHTS?

                                  ----------

                           TUESDAY, FEBRUARY 23, 2010

                                           U.S. Senate,
                                    Committee on the Judiciary,
                                                         Washington, DC
        The Committee met, Pursuant to notice, at 10:06 a.m., in
    room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
    Leahy, Chairman of the Committee, presiding.
        Present: Senators Leahy, Whitehouse, Specter, Franken,
    Sessions, and Kyl.

    OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
                          THE STATE OF VERMONT

        Chairman Leahy. First off, I will apologize for a little
    laryngitis from a week up in Vermont last week. I was delighted
    to be there. We do not seem to have the problems with snow that
    they do in the Washington area, although that is not always so.
    Over New Year's weekend, I know in Burlington they had 34
    inches of snow, and two of the schools had to open an hour late
    on Monday. On Monday. I have determined that in Washington if
    terrorists could learn how to make it snow, that is all they
    would need to stop the Government forever. Anyhow, that has
    nothing to do with this hearing, and the views expressed do not
    necessarily represent the views of the sponsor of the U.S.
    Senate, or something like that.
        But today's hearing, though, is on a very serious matter.
    It focuses on how lawsuits brought against American reporters
    and publishers in foreign courts are affecting our First
    Amendment rights here in America.
        When the Supreme Court issued its landmark ruling in New
    York Times v. Sullivan over 40 years ago, Justice Brennan noted
    that ``debate on public issues should be uninhibited, robust,
    and wide-open, and that it may well include vehement, caustic,
    and sometimes unpleasantly sharp attacks on government and
    public officials.'' I agreed at that time with Justice Brennan,
    and even though, like everybody in public office, I have felt
    the occasional stings--Senator Franken, why don't you come on
    up here? Though I have felt the stings of what might come out
    of the result of New York Times v. Sullivan, I would not change
    that decision one iota.
        The role that American authors, reporters, and publishers
    play in our democracy is essential. Although they are protected
    under our First Amendment in American courts--and,
    interestingly enough, when the First Amendment was adopted, if
    you go back and read some of the things that were printed in
    the various broadsides and all, I mean, they were scathing on
    political leaders, and yet we adopted the First Amendment. Many
    other countries, though, even a couple hundred years later,
    have not offered similar protections. When plaintiffs travel to
    countries where there is no regard for freedom of the press to
    sue American authors or publishers, that has come to be known
    as ``libel tourism.'' Often, the publication at issue was not
    directed to that foreign country. In many cases, the plaintiff
    has no connection to the foreign forum. The foreign court has
    been chosen simply because of its plaintiff-friendly libel
    laws.
        Now, due to the worldwide dissemination of materials
    through the Internet, as well as the international publication
    of U.S. newspapers, such lawsuits threaten to dramatically
    alter the quality of public debate both here and abroad. And as
    the son of a Vermont printer, and son of a man who once
    published a weekly newspaper in Vermont, this is an issue I
    take very seriously.
        Whether it is an American institution like the New York
    Times or a popular blog like The Huffington Post, modern
    technology allows reports to be read around the world instantly
    regardless of the author's intent to target a foreign market.
    In other words, the author may well have intended this for a
    particular group here in the United States, but it can be read
    anywhere in the world. If American authors and publishers run
    the risk of foreign lawsuits with every article or book that
    they write, then there is going to be a race to the bottom. It
    is going to be the most chilling and restrictive standards that
    will be followed. And this potential chilling effect will in
    turn deprive Americans of the kind of candid commentary and
    uninhibited information that our laws are designed to foster
    and protect.
        Two libel tourism bills are pending before this Committee.
    They both address what role American courts should play in
    protecting the First Amendment rights enshrined in the U.S.
    Constitution. Now, as much as we might like to, we cannot
    legislate changes in foreign law to simply eliminate libel
    tourism. We all know that. But I would hope that we could all
    agree and I would hope this could be a bipartisan agreement
    that our courts--our courts--should not become a tool to uphold
    foreign libel judgments that would undermine the First
    Amendment or due process rights. Making that explicit with
    Federal legislation makes sense.
        When I was growing up, it was almost an article of faith in
    our family that the First Amendment was as important a part as
    any--more important than most--in our Constitution. It gives
    you the right to practice any religion you want or none if you
    want. It protects your right of free speech. If you protect
    those things in your Constitution, you protect diversity and
    you protect democracy. With such diversity guaranteed and
    protected, then you have a democracy. And I think you have to
    make that explicit with Federal legislation. They say that
    protections in our courts are going to continue for Americans.
    Whether the U.S. Congress should pass legislation creating an
    unprecedented retaliatory cause of action in American courts,
    of course, is a tougher question.
        I thank Senator Whitehouse, who is the Chairman of the
    Subcommittee on Administrative Oversight and the Courts, for
    co-chairing this hearing. I thank Senator Franken, who has long
    discussed such issues, for being here. And I thank those who
    are here.
        Do you want to say anything?

    STATEMENT OF HON. AL FRANKEN, A U.S. SENATOR FROM THE STATE OF
                               MINNESOTA

        Senator Franken. Well, as someone who has written and been
    sued here and won, this is of interest to me, and so I did not
    have an opening statement prepared, but I look forward to the
    testimony.
        Chairman Leahy. For which you have a passing interest.
        Senator Franken. I would say I have more than a passing
    interest, having been to court and prevailed here in the United
    States, and I actually think I would have prevailed anywhere in
    the frivolous case that was filed against me.
        Chairman Leahy. That does not always happen. As a lawyer,
    let me tell you, it does not always happen.
        Mr. Wimmer is a partner at the law firm of Covington &
    Burling. He has advised journalist associations and legislators
    in more than two dozens countries concerning new media laws in
    protection of journalists and freedom of information. He served
    as general counsel of Gannett Company.
        Mr. Wimmer, we are delighted to have you here. Please go
    ahead, sir--oh, I am sorry. Senator Kyl has been urging me to
    hold this hearing, and I agree with him on it, and we talked
    about it last night. Did you want to say something, Jon?

      STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF
                                ARIZONA

        Senator Kyl. Just thank you, and we want to hear from the
    witnesses. This is a really growing, important topic for
    American citizens, and to have the Committee engaged in it I
    think is very important. So I appreciate your holding the
    hearing, Mr. Chairman, and I apologize for being a little late.
        Chairman Leahy. No. I thought you made a very good point on
    the need for it.
        So, please, Mr. Wimmer, go ahead.

    STATEMENT OF KURT A. WIMMER, PARTNER, COVINGTON & BURLING LLP,
                             WASHINGTON, DC

        Mr. Wimmer. Thank you. Chairman Leahy, Senator Franken, and
    Senator Kyl, it is an honor to be here with you. I really
    appreciate the opportunity.
        Chairman Leahy, like you, I am also descended from a
    printer. My grandfather was a printer in Luxembourg City during
    World War II, and his presses were destroyed by the Nazis. So
    my heroes have always been journalists. I am now privileged to
    represent them.
        My work includes a challenging task: advising publishers
    and authors on how to publish the robust journalism that
    Justice Brennan's opinion that you quoted from this morning
    requires in an era when they can be sued anywhere in the world
    simply because their work can be accessed through the Internet.
    The issues that you are addressing today can help preserve the
    vitality of the First Amendment in an internationally networked
    world.
        The potential for being sued or prosecuted on the basis of
    an online publication really does chill the exercise of
    essential First Amendment freedoms. This chill can result in
    self-censorship. It can result in decisions not to publish. It
    can result in decisions to assess American content based on
    legal standards that protect free speech much less than do our
    laws.
        Some ask, legitimately so, whether this chill really
    exists. If we know that U.S. courts will refuse to enforce a
    foreign judgment that does not comply with the First Amendment,
    is there still a chill? The answer, in my view, is yes. A
    foreign judgment, as soon as it is rendered, has an immediate
    and damaging effect on the author who has been sued, even if
    the judgment is never enforced in U.S. courts, because of the
    impact of having that judgment against you.
        Proving a First Amendment chill, as you know, in any area
    is never easy. We cannot know for sure when punches have been
    pulled, when stories have been killed, and when manuscripts
    have been left unpublished. But there are a few concrete
    examples.
        One involves the Cambridge University Press, surely one of
    the most prestigious publishing houses in the world, that
    published a book written by two Americans--Professor Robert
    Collins and a former State Department official, J. Millard
    Burr--entitled ``Alms for Jihad: Charity and Terrorism in the
    Islamic World.'' The plaintiff in that case was a Saudi
    billionaire named Sheik Khalid bin Mahfouz, who claimed the
    book defamed him by linking him to the funding of terrorism.
        Cambridge University Press, rather than mounting a spirited
    defense in the English courts against that suit, simply
    settled. It could not afford the litigation. In 2007, it not
    only stopped publishing the book, it destroyed all copies of
    the book it had on hand and sent out a communication to all
    libraries in the world, including those in the United States,
    asking them to destroy copies of the book in their possession.
    Thanks to the American Library Association, that did not occur
    in most U.S. libraries, but it is a chilling idea.
        And, of course, foreign judgments that are not enforced can
    cause real damage to U.S. authors. Take, for example, the case
    of Dr. Rachel Ehrenfeld, who is seated just behind me, who
    published the book ``Funding Evil,'' which also dealt with the
    issue of financing terrorism. The book was published solely in
    the United States, and was never meant to be published outside
    of the United States. Less than two dozen copies managed to
    find their way to the United Kingdom, and the same billionaire
    who sued the Oxford University Press then sued Dr. Ehrenfeld.
    Dr. Ehrenfeld decided not to defend in England, and a default
    judgment was rendered, and that judgment is very interesting
    because it shows the difference between a default judgment that
    we are familiar with in U.S. courts and one that is rendered in
    a foreign court. This judgment not only entered damages and
    attorneys' fees against Dr. Ehrenfeld, but also included a
    declaration of falsity, a direction that Dr. Ehrenfeld publish
    an apology, and injunction against the further publication of
    the challenged statement. So this has a current effect on Dr.
    Ehrenfeld. Not only will there never be a European edition of
    ``Funding Evil,'' which may or may not have been on the plans
    to begin with, but it may impede Dr. Ehrenfeld from obtaining
    future publishing contracts because publishers carry insurance
    policies that might make them shy away from an author that is
    already subject to a libel judgment. And, in fact, Dr.
    Ehrenfeld told a New York court that this has happened.
        Most importantly, though, the chill of these judgments
    impedes the free flow of information that New York Times v.
    Sullivan was premised on and that our First Amendment requires.
        If a publisher can be sued in any country based just on a
    few downloads, the media loses the ability to predict which
    country's law will apply to the work. A publisher engaging in
    pre-publication review may have no choice but to tailor the
    work to the standards of the nations that afford the weakest
    protections for free expression. And American audiences will
    have to accept the lowest common denominator. That is not the
    intent of the First Amendment, of course.
        This chill affects international authors as well. If
    American authors meet this challenge by deciding to limit the
    expression of their work to only the United States, either by
    trying to limit publication of written works or trying to block
    IP addresses from other countries, which some publishers are
    now doing, the rest of the world will lose access to the robust
    American investigative journalism that is often the only light
    being shed on corrupt governments.
        Under the state of the law today, the foreign plaintiff
    really has control. The foreign plaintiff decides when to
    enforce, whether to enforce, and how long to control this
    process. Pending legislation that has been talked about would
    shift some of this control back to the U.S. author and give the
    author the opportunity to seek a declaratory judgment in a U.S.
    court that the foreign judgment is not enforceable, which would
    remedy a number of these chilling effects.
        It would not solve the entire problem, Chairman Leahy, as
    you noted. There needs to be international law reform, and it
    needs to move ahead. But it is a first step in that direction.
        Chairman Leahy. If I could just interrupt on that, even if
    they were precluded from enforcing it in the U.S. courts,
    somebody could still file suits in, say, a dozen jurisdictions.
    Let us say they were successful in all of them. Even though you
    cannot touch the person here in the U.S., where their assets
    might be, it pretty well makes it pretty frightening for that
    author to travel anywhere.
        Mr. Wimmer. Absolutely. Absolutely right. It restricts
    their ability to work. It restricts where they can publish in
    the future. It restricts what publishing houses they can deal
    with, what media outlets they can deal with in the future. And,
    of course, it does restrict their travel. So I think it does
    have immediate and current effects even outside of the question
    of whether the judgment can be enforced.
        I thank you very much for your time today, and I thank you
    for looking at this important topic.
        [The prepared statement of Mr. Wimmer appears as a
    submission for the record.]
        Chairman Leahy. Thank you.
        Bruce Brown is a former reporter of the Legal Times. He is
    now a partner at Baker Hostetler. His practice focuses on
    copyright, libel, and the law of news gathering. He is also an
    adjunct faculty member at Georgetown University's journalism
    program.
        Mr. Brown, please go ahead, sir.

      STATEMENT OF BRUCE D. BROWN, PARTNER, BAKER HOSTETLER, LLP,
                             WASHINGTON, DC

        Mr. Brown. Thank you, Mr. Chairman, and thank you members
    of----
        Chairman Leahy. The little red light should be on, if it is
    not on. There you go.
        Mr. Brown. It should be on now. Thank you.
        Thank you, Mr. Chairman and members of the Committee. It is
    an honor to appear before you today to talk about libel
    tourism.
        I have to confess I do not have a grandparent who was in
    the printing business, but when I was in law school, I did
    stumble across, completely by happenstance, a Missouri Supreme
    Court decision from the early 1900s where my great-grandfather
    was a witness in a libel case. And I am proud to say he was a
    witness for the defense.
        [Laughter.]
        Chairman Leahy. Good for him. And I went to Georgetown, so,
    OK, we are all right.
        Mr. Brown. Mr. Wimmer has just painted a picture here of
    the threat of libel tourism and the chilling effect it has
    created here at home. Short of having international treaties
    with jurisdictional and choice of law provisions, we may not be
    able to eliminate this threat entirely. But there are defensive
    measures we can take here at home to help reduce the risks that
    publishers face today.
        My testimony this morning focuses on these potential
    legislative solutions. Four States already have libel tourism
    laws, and bills have been introduced in four more. Courts in
    two States have refused to enforce foreign libel judgments. But
    we need Federal legislation to create a uniform national
    policy. This is not an area where a speaker's protection should
    depend upon the substantive laws of the State in which he or
    she resides or whether that State's long-arm statute reaches as
    far as due process will allow.
        One component of any bill should be barring the recognition
    during an enforcement proceeding here in the U.S. of any libel
    judgment obtained overseas unless it is consistent with both
    due process and First Amendment protections here at home.
        Second, in cases where no enforcement proceeding is
    brought, the legislation should provide a cause of action for a
    U.S. citizen to sue a foreign plaintiff for a declaration that
    the foreign judgment is repugnant to the U.S. Constitution.
    Declaratory relief would provide such a remedy when the foreign
    plaintiff has no intention of moving to recognize the judgment
    in the U.S.
        Three, on a jurisdictional level, Congress can ensure that
    foreign libel plaintiffs are more likely to fall within the
    reach of the Federal courts in a declaratory judgment action if
    it requires that State long-arm jurisdiction be read co-
    extensively with the Due Process Clause, regardless of the
    State in which the declaratory judgment is brought. And to that
    same end, a potential libel tourism law should include a
    nationwide service-of-process provision to permit the Federal
    courts to make use of the connections between the foreign
    plaintiff and the country as a whole, making it more likely
    that the foreign plaintiff will be amenable to suit. These are
    some of the key reasons why we need Federal legislation.
        Legislation to combat libel tourism will not be able to
    resolve all of the problems associated with this practice.
    Foreign plaintiffs with no ties to the U.S., no business
    interests here, no purpose to visit, et cetera, may be able to
    stay in splendid sanctuary overseas because our courts will not
    reach them. But there are some additional tools at Congress'
    disposal to make these persons think twice before filing
    lawsuits that seek to circumvent the First Amendment. An
    additional deterrence mechanism, for example, might involve
    libel tourism legislation that contains provisions to recover
    attorneys' fees. For example, if a U.S. citizen against whom a
    foreign judgment was rendered obtains declaratory relief from a
    Federal court here, the bill could include fee-shifting
    provisions that would allow the U.S. citizen to recover the
    fees incurred in that declaratory relief action. In addition,
    the bill could also provide for the fees incurred in defending
    the foreign action if the foreign plaintiff moves to enforce a
    judgment in the U.S. that is found to be inconsistent with due
    process or the First Amendment.
        The awarding of damages against the foreign plaintiff in
    the most egregious cases, those where both the First Amendment
    and due process are violated and the plaintiff moves to enforce
    here, is something this Committee might keep in mind as it
    deliberates other more incremental approaches.
        Finally, in closing, I have to say that watching with great
    excitement as the clock ticked down against Team Canada on
    Sunday night, the proverbial hockey puck hit me in the head. A
    libel tourism bill should deal sternly with the foreign
    plaintiff who secures a judgment overseas and never moves to
    enforce it here, leaving the American author, like Dr.
    Ehrenfeld, in legal limbo. I have already discussed a first
    possible step in these cases: creating a cause of action for
    declaratory judgment with attorneys' fees incurred in that
    name-clearing proceeding. But if a foreign plaintiff does not
    move to enforce a judgment within a certain period of time,
    say, for example, within the statute of limitations for
    defamation in the foreign jurisdiction where the suit was
    initially filed, it makes the foreign lawsuit look even more
    dubious. We should, therefore, consider additional deterrence
    in these cases. Let us start the clock ticking so that U.S.
    authors and journalists are not faced with perpetual
    uncertainty.
        Thank you, and I look forward to your questions.
        [The prepared statement of Mr. Brown appears as a
    submission for the record.]
        Chairman Leahy. Thank you very much, Mr. Brown.
        First, Mr. Wimmer, I listened very carefully to what you
    were saying on the chilling effect. You know whatever you write
    or whatever you say can go on the Internet. You can say it in
    Montpelier, Vermont, at 10 o'clock in the morning and have it
    on the Internet in Britain or China 2 minutes later, and you
    have to be thinking what is going to happen when it goes there.
    That certainly goes contrary to everything that
    constitutionally and historically we have ever intended in our
    First Amendment protection.
        But let me play devil's advocate for a little bit. No
    American court has ever enforced a foreign libel judgement so
    that we even need legislation.
        Mr. Wimmer. It is a fair question. In fact, when I started
    looking at these cases many years ago, particularly with the
    Yahoo case out of France, that was my first thought: Well,
    simply wait for them to enforce and then use the line of cases
    that both Bruce and I described in our written testimony that
    prevents a U.S. court from recognizing those sorts of
    judgments.
        But as you look more deeply at the effects of the
    judgments, it just seemed to me that a declaratory remedy would
    be really helpful for U.S. publishers and authors.
        In the Yahoo case, for example, substantial monetary
    damages were ticking away under that fine, regardless of
    whether the plaintiffs came over here or not. In the case of
    Dr. Ehrenfeld and some others, there are immediate problems
    with their ability to continue publishing just because they
    have a judgment against them. In fact, many of these
    plaintiffs, as Bruce described, have no intention of ever
    coming over to enforce the judgment. Their purpose of getting
    the judgment is exactly to chill free speech. They want to stop
    the publisher from saying anything else against them.
        Chairman Leahy. But if we have a retaliatory cause of
    action in our courts, for example, with treble damages, is this
    going to really help? Or how is this going to be viewed
    internationally?
        Mr. Wimmer. Well, I think it is a very interesting
    question. It is a fine line to walk because I think the--you
    know, a declaratory judgment remedy, a remedy that basically
    says, look, we will decide in the United States what our courts
    will enforce and we find that this judgment does not meet those
    standards and it will not be enforced strikes me as entirely a
    domestic remedy that does not impinge on any other country's
    issues.
        And, you know, I also like the idea of attorneys' fees
    because an author such as Dr. Ehrenfeld should not have to lose
    money to go and get that declaration. At the same time, I think
    if we talked about treble damages, it becomes more difficult
    because then it looks like we are punishing another party in
    another country for accessing his or her own country's courts
    in an action that might be legitimate under that country's
    laws.
        So it is a fine line that the Committee has to walk, and,
    you know, we are happy to discuss it.
        Chairman Leahy. What do you think about that, Mr. Brown?
        Mr. Brown. Just to add to Mr. Wimmer's answer, I think that
    the fact that two States have refused to enforce foreign libel
    judgments is obviously a very helpful starting point, but it is
    important to remember that in both those cases the courts
    decided under State public policy. They did not reach the First
    Amendment issue. And one of the things that Federal legislation
    can do is to create a uniform national policy that would say
    recognition of these judgments violates the First Amendment.
        If we leave it to the States, there is always the
    possibility that different State courts would interpret their
    own State's public policy differently, and you would end up
    with a patchwork series of laws around the country where some
    States may be willing to accept such a foreign judgment and
    some States might not. And I think that Federal legislation is
    important for some of these other reasons, that it would
    enhance declaratory judgment remedies by making sure that if,
    for example, you attempted to bring a declaratory judgment
    action in a State that did not interpret due process--excuse
    me, did not interpret its long-arm statute to the extent of due
    process, Federal legislation could step in to make sure that
    any long-arm statute was interpreted to the full extent of due
    process.
        Chairman Leahy. But are you saying that the Federal
    legislation would override these State laws and State courts?
    Doesn't this create a bit of a problem if we are telling States
    how they interpret their own Constitutions and their own laws?
        Mr. Brown. I do think under the First Amendment, I think
    Congress can say it should be a national policy to----
        Chairman Leahy. You can say it is national policy, but how
    do you tell a State that they must--that their State laws and
    their State Constitutions must coincide with what we have
    stated to be a national policy?
        Mr. Brown. Well, I do believe that the First Amendment in
    this context could compel the States to interpret their own
    long-arm statutes to the full extent of due process so that
    declaratory relief would be possible. And I also do believe,
    Senator, that under some of the exemptions to the Anti-
    Injunction Act, for example, Congress could require States not
    to enforce foreign libel judgments that violate the First
    Amendment.
        Chairman Leahy. Well, that part I can understand a little
    bit easier. You co-authored an editorial in the Wall Street
    Journal last year in which you referred to the political
    efforts to combat libel tourism as ``constitutionally
    problematic,'' and a concern I have is whether American courts
    would have personal jurisdiction over foreign plaintiffs who
    brought problematic libel claims. Do we remain silent on this
    issue in a legislative fix, or do we have to talk about the due
    process requirements?
        Mr. Brown. I think that the legislation can be silent on
    personal jurisdiction as it relates to the amenability to suit
    of a foreign libel plaintiff here in the U.S. The courts will
    interpret the statute to the full extent that due process
    permits them to do so. What we would like to see is some
    explicit provision that would make sure that the courts did go
    to the full extent of due process, and that also might include
    some kind of national service-of-process provision so that the
    courts could take into consideration the full panoply of
    contacts that a foreign libel plaintiff had with the U.S. in
    order to determine whether he or she would be amenable to suit
    here.
        Chairman Leahy. Thank you.
        Senator Sessions.
        Senator Sessions. Thank you, Mr. Chairman, and thank you
    for having this hearing. I think it is a very important issue,
    but it is a complex issue, too, and it is difficult to get
    right.
        Chairman Leahy. Since I am leaving, I would just ask if I
    could submit for the record two letters.
        Senator Sessions. We will admit them to the record. Is that
    what you want me to say?
        [Laughter.]
        [The letters appears as a submission for the record.]
        Senator Sessions. Anyway, I appreciate Senator Kyl--I know
    he has done a lot of work on this, and I will yield to him. I
    have two other Committee hearings this morning.
        I would just say that we would like to do it right. We
    would like to try to respond in a way that is effective, and
    the courts have not been anxious to enforce these kinds of
    foreign judgments, which I cannot help but remember Dean
    Harrison, old retired Dean Harrison of Alabama Law School
    teaching conflicts of laws, and Tobago had issued an order, and
    the question he posed to the class was: Can the island of
    Tobago bind the whole world? And their decision in that case
    was considered binding. So we have got to be careful about how
    we do this. We have a whole body of conflicts of law that are
    important.
        I thank you for your testimony. We are going to be studying
    it, and I guess I would just yield back my time at this point,
    or maybe recognize Senator Kyl and yield my time to him. May I
    do that?
        Senator Kyl. Mr. Chairman, should I take a couple of
    minutes of Senator Sessions' time here?
        First of all, I want to thank both witnesses and add to the
    voice here that this is a subject which I think it would be
    very important for Congress to begin to act on before this
    problem gets much worse, which leads to the first question. Is
    the problem getting worse? In other words, is this a problem
    that is behind us, or do we see an increasing trend,
    particularly in Great Britain or in other countries, with these
    kinds of suits being brought?
        Mr. Wimmer. Personally, I think the trend is increasing,
    and, frankly, there has been a lot of attention given to the
    United Kingdom because of the English courts and their
    willingness not only to have judgments that enjoin speech, but
    also just because they will entertain jurisdiction over people
    with very slight ties to the country, which we might not do.
    But we see this happening all over the place. It is not an
    English issue, and so if the English courts were to engage in
    sudden law reform--which, frankly, I do not think is on the
    horizon--we would still have an issue in other countries. So I
    do think it is increasing.
        That said, I have not seen as many of these suits as I
    expected to see 10 years ago. I thought there would have been
    an enormous watershed. It has been more of a gradual uptick.
    And I think as the strategy becomes more useful, as foreign
    plaintiffs find that they actually can stop authors from saying
    more things about them by suing them in other countries, I
    think we will start to see a lot more of it.
        Senator Kyl. I would also just note that you do not have to
    actually file the suit. You can write a letter, make inquiry,
    and that has happened in the case of one individual in Arizona
    that I know. It is basically the threat of a lawsuit. And it
    would be interesting to see how much of that is going on as
    well.
        Mr. Wimmer. Well, that is the other reason why I think we
    will get more of these. A lot of the English law firms, for
    example, the Schillings firm and others, have really taken to
    being very aggressive about telling people when they might have
    a lawsuit and encouraging them to think about doing that, which
    will lead to more litigation.
        Senator Kyl. Now, Senator Leahy asked an important
    question. What is it about the international nature of this
    that enhances the ability of Congress to deal with the issue as
    a Federal matter? You have the First Amendment, to be sure. But
    is there a basis in law for us to act because of the
    international nature of this?
        Mr. Wimmer. Well, Bruce hit, I think, the most important
    reason for Congress to act, which is to create uniformity. Now,
    there are several States--New York, Florida, Arizona is now
    considering a bill--that have moved in this direction and are
    giving their authors some protection. But what happens in other
    States? And just as plaintiffs choose countries----
        Senator Kyl. Excuse me for interrupting.
        Mr. Wimmer. Sure.
        Senator Kyl. I appreciate the desirability of having
    uniformity.
        Mr. Wimmer. Right.
        Senator Kyl. My question, though, is: Is there a legal--
    does Congress have an enhanced legal ability to deal with this
    nationally because of the international nature of the issue?
    This is not just a matter of we decided that it would be a good
    idea to have tort reform in health care legislation. This is a
    matter of an international practice that the country, it seems
    to me, has a right to deal with. It is desirable to have a
    uniform way of dealing with it, in my opinion, but is there
    legally an enhanced ability of Congress to deal with this
    because of the international aspect, is what I am asking.
        Mr. Wimmer. It is a great point, and, in fact, I think the
    fact that it is an international threat that affects the entire
    country as a whole enhances Congress' ability to set a national
    policy in this regard.
        I have thought a lot about whether it would be offensive to
    the States for Congress to act, and, in fact, I think that it
    would not be any more than any First Amendment decision such as
    New York Times v. Sullivan sets the floor, it does not set the
    ceiling; States can do more if they wish. But in this area,
    because this is an international issue that really has an
    impact on the country as a whole, it strikes me that Congress
    can move forward with a national policy that would not be
    intrusive into the States.
        Senator Kyl. Mr. Brown, your views, too?
        Mr. Brown. Well, I was just going to add to that--it is
    sort of a technical answer in some ways, but legislation could
    ensure that any such cases were removed to Federal court so
    that these issues were ultimately resolved by Federal courts
    and not State courts, so that if there are some circumstances
    out there where we think an American author might be caught in
    the State court system if somebody was trying to enforce a
    judgment there, to make sure that there are adequate removal
    provisions to see that these issues are ultimately litigated in
    Federal court since we would like to see the standard be a
    First Amendment nationwide standard as opposed to what we have
    now where States have individually looked to their public
    policy.
        Senator Kyl. I am just looking for the legal basis. You are
    in court, the Chief Justice glares down at you and says, ``And
    what is the provision of the U.S. Constitution that allows
    Congress to pass this legislation? ''
        Mr. Brown. Well, I think that something you may be tapping
    into here, Senator, is that there has been a particular concern
    with these cases that they are impacting the flow of
    information relating to national security. Dr. Ehrenfeld's book
    is certainly one example of that. We worked with an author last
    year who was in the process of publishing a book on Islamic
    terrorism and was very concerned about lawsuits overseas that
    would either--the threat of the lawsuits, frankly, deterring
    the publication of the book here, or some kind of crippling
    wave of litigation overseas that would impede further
    distribution of the book.
        So I do think that Congress is acting against a backdrop in
    which there certainly has been a pattern here of an effort to
    suppress books and journalism that relate to fundamental
    national security issues, and that may give Congress another
    tool to work with, another basis of support for legislation.
        Senator Kyl. I am happy to engage in a second round if you
    all would like to.
        Senator Whitehouse. [Presiding.] Absolutely, but the floor
    is now Senator Franken's.
        Senator Franken. Thank you, Mr. Chairman, and thank you,
    gentlemen. I should make clear that I was not subject to a
    libel case. A news organization in the United States attempted
    to enjoin a book of mine based on a trademark, and they lost
    and were ruled against, and were actually kind of laughed out
    of court. But I identify with authors who face this kind of
    thing. And I do want to focus on the ``chilling effect'' and
    what it actually is.
        Mr. Wimmer, you said that in some cases this can restrict
    travel for an author. What does that mean? Does that mean they
    can get arrested in the other country or they can have their
    assets seized? Or what does it mean?
        Mr. Wimmer. Well, in most countries--and this is, you know,
    based on civil litigation. I think you could travel to England
    even if you had a judgment against you and not worry that you
    would be thrown into debtor's court. On the other hand, there
    was a journalist named Andrew Meldrum who was prosecuted in
    Zimbabwe under Mugabe's information law based on content that
    was downloaded from the Internet. And I would be absolutely
    certain that Mr. Meldrum would not go back to Zimbabwe under
    any circumstances. So it depends a little bit on the context.
        But, you know, for most of the cases we are talking about,
    international libel cases, the real restriction comes from
    living and working in other places where you could have assets
    that would then be used to satisfy the judgment or publishing
    with publishing houses there, which would be a restriction.
        Senator Franken. With publishing houses that are located in
    the country where the judgment was made?
        Mr. Wimmer. Right. It seems less likely that if you had
    been subjected to a foreign judgment, finding that you had--
    declaring, in fact, that you had defamed someone and published
    false statements, it would be much less likely as a practical
    matter that you would be able to enter into a contract with a
    publisher in that country because they would be less likely to
    want to associate themselves with an author that was subjected
    to a judgment already. So a lot of these are practical but not
    sort of legal bars.
        Senator Franken. OK. I was listening to Senator Kyl's line
    of questioning. Does anyone conceive of any kind of Federal law
    being unconstitutional? Would it be likely that it would come
    before the Court, in anybody's judgment, in either of your
    judgments?
        Mr. Brown. I would just add that provided that it does not
    step too far on the due process front and attempt to ensnare
    within its reach foreign libel plaintiffs who have virtually no
    connection to the U.S. and, therefore, do not have the minimum
    contacts to be sued here, and that is why we advocate an
    approach that is silent on due process and to let the courts
    interpret the law consistent with what they have done in that
    area. But I think as long as it does not overreach in that
    area, there is nothing that I think would be constitutionally
    objectionable.
        Senator Franken. OK. From Mr. Wimmer's testimony, it seems
    that he does not believe that simply having a Federal law
    saying that we do not in the United States pay these judgments
    is sufficient, that he wants the ability to go after legal fees
    in these other countries. Doesn't that just sort of roil the
    whole thing and just add another layer of litigation that--you
    know, we are dealing with foreign sovereign nations. Aren't we
    sort of making things more complex than they need to be? Isn't
    there an understanding and--I do not want you to speak for Ms.
    Ehrenfeld, but isn't there some kind of understanding that if
    this happens in another country it really does not count for
    that much?
        Mr. Wimmer. Well, you have obviously identified an
    important concern, and it really goes to how far the
    legislation goes. For example, I do not know of anyone who
    suggested that we should have legislation that would attempt to
    enjoin a pending foreign action while it was ongoing because
    that would be too intrusive into another country.
        Senator Franken. Obviously.
        Mr. Wimmer. So that is one sort of polar side that you can
    look at and say, well, we would not go there.
        On the other hand, you have identified one that strikes me
    as fairly straightforward, which is to say as a matter of
    national policy these judgments, if they are not consistent
    with our First Amendment due process, would not be enforceable,
    which is a helpful first step. But I do think that the
    judgments continue to have, you know, an immediate effect on
    the people who are subject to them, and you cannot really
    combat that completely here in the U.S. Obviously, you would
    need to reform the law, but----
        Senator Franken. I mean, you want a chilling effect on
    people bringing libel suits in other countries.
        Mr. Wimmer. Right.
        Senator Franken. Right? And, you know, how much is all that
    worth is my question.
        Mr. Wimmer. Well, one way Congress could resolve this is by
    looking at the range of issues that it could go. We have sort
    of identified two poles here: one is just the national policy
    that they are not enforceable generally, and the other is
    enjoining them before they happen. And, you know, those are two
    extremes. Somewhere along the continuum you have got the
    possibility of a declaratory judgment action that would take
    the national policy and say, well, in this specific suit we
    find that the First Amendment was not followed and that cannot
    be enforced.
        The attorneys' fees is one more step along the continuum.
    You may decide that that is too intrusive into another
    country's business. Damages is another step on the continuum.
    So, in a way, it is a line-drawing exercise, I think.
        Senator Franken. It seems that one--and I am over my time.
    It just seems that one--you create a continuum, it just seems
    that one was really extreme, and the other was reasonable.
        Mr. Wimmer. Right.
        Senator Franken. So when you have a continuum----
        Mr. Wimmer. I need to have something else?
        [Laughter.]
        Senator Franken. That is an interesting continuum. OK. Mr.
    Chairman, I have used my time, and thank you.
        Senator Whitehouse. Senator Kyl, I will treat your first
    round as having been the remainder of Senator Sessions' time,
    and now you are on your own time.
        Senator Kyl. Thank you. I am just going to continue Senator
    Franken's line of questioning here, too, because I think we are
    all seeking the same thing here.
        It seems to me that, first of all, you would like to deter
    these kinds of suits, and you could have such a robust action
    here in the United States that you could go too far. But it
    seems to me that getting a judgment in the United States for
    attorneys' fees, as long as some minimum contact requirement
    were satisfied, that that would be a bit of a deterrent
    because, in effect, you are saying, fine, you do not want me to
    do business in your country, well, you are not going to do
    business in this country, that is, unless you pay up first. At
    least if you have a bank account here, I am going to be able to
    have access to that potentially in an enforcement action and so
    on.
        So I guess that is the first question. Would it be useful
    to at least have the deterrent effect of a judgment in the
    United States which could be enforced if the individual decided
    to come over to the United States?
        Mr. Brown. Well, Senator, I do think that deterrent effect
    is crucially important, and when you take a step back and think
    that someone like Dr. Ehrenfeld has this judgment against her
    for speech that was entirely protected in the jurisdiction in
    which she wrote, in the jurisdiction in which she published, I
    think that you will see that the balance of equities does tilt
    in favor of having some kind of deterrent mechanism such as
    attorneys' fees.
        And I think just to add to the excellent answer that Mr.
    Wimmer gave, a deterrent mechanism may also prompt reform
    overseas, and that is one piece of the puzzle we have not
    brought up here yet this morning. There is now some effort in
    the U.K., I think, to address their own nation's libel
    jurisprudence. I think that the fact that there is some
    agitation in other parts of the world about the unfairness of
    British courts maintaining jurisdiction over libel cases on the
    thinnest of jurisdictional reeds, such as publication over the
    Internet, has created in that country a sense that perhaps
    reform needs to take place there.
        Now, we could be waiting for that for some time, which is
    why incremental steps here that create a deterrent effect, such
    as the possibility of attorneys' fees, I think is wholly
    appropriate.
        Senator Kyl. OK. What would the declaratory judgment be in
    a successful case? And what would the effect of it be?
        Mr. Wimmer. Senator Kyl, I think we would be looking for a
    declaratory judgment that would address the specifics of the
    way the judgment was rendered, the facts of it, and would say
    that the judgment was rendered in a way that is inconsistent
    with the First Amendment and due process.
        Senator Kyl. And so the practical effect is the author can
    go to other publishing houses and say, ``Look, that was a bogus
    deal over there. I have got a valid U.S. declaratory judgment.
    Publish my writings.''
        Mr. Wimmer. Exactly, and it would really help to cure a lot
    of the chilling effects that Bruce and I have talked about
    today, and it would blunt the impact of the foreign judgment in
    a way that I think, even putting aside attorneys' fees, that
    act itself would have a deterrent effect if the foreign
    plaintiff knew that we would have--the author here would have
    an opportunity to blunt the impact of that judgment. The
    attorneys' fees, I agree with you, would be an additional
    deterrent.
        Senator Kyl. What are some of the other implied negative
    consequences for an author who has this kind of action taken
    against him or her?
        Mr. Wimmer. Well, one other consequence that really arises
    from the way that foreign judgments are often rendered is it is
    almost a defamation on the author himself or herself to have a
    judge in England make a decision that statements were false on
    the basis of a default action in which there was no trial.
    There was no quest for truth, but there is a finding now that
    statements are false, that defamation occurred, a demand for an
    apology, an injunction against publication. So that I think has
    a reputational harm that is vested in the author just from the
    judgment.
        Senator Kyl. Does the injunction also potentially reach
    even to the point of retailers?
        Mr. Wimmer. Oh, sure. Absolutely.
        Senator Kyl. So it is not just the publishing house. It is
    basically telling anybody in the country you cannot deal with
    this----
        Mr. Wimmer. Oh, no question. Yes.
        Senator Kyl. It just seems to me that if somebody--the best
    place to do business in the world is still the United States of
    America, and you are basically involved in a tit-for-tat action
    here. But I think people who file these lawsuits may at some
    point in their career want to come to the United States and do
    some kind of business, and that until we get some kind of
    international treaty or something that deals with this, that
    may be the best kind of action to contemplate here.
        Thank you, Mr. Chairman.
        Senator Whitehouse. Thank you.
        Senator Specter.
        Senator Specter. Thank you, Mr. Chairman.
        Mr. Brown, do you support or oppose S. 449?
        Mr. Brown. The overall import of the bill we support
    wholeheartedly. We want to see strong deterrent measures taken.
    We want to see the possibility of inflicting some pain on the
    foreign libel plaintiff who seeks to circumvent the First
    Amendment by filing a lawsuit overseas.
        We have addressed some issues involving the personal
    jurisdiction component of the bill because we want to make sure
    that we, in vindicating the First Amendment, also uphold what
    the courts have said about due process and the amenability to
    suit of foreign citizens. And so we would like to see that bill
    move forward in a way that both protects the First Amendment
    and also does not overreach on due process so in the future
    that some may claim that we overstepped on the due process
    ground.
        Senator Specter. Well, is there any more of a problem with
    S. 449 on the nexus issue than there is with the alien tort
    statute or the Torture Victim Protection Act?
        Mr. Brown. Well, those statutes are silent on the question
    of personal jurisdiction, and the current Senate proposal does
    propose holding to suit here in the United States someone who
    has caused papers to be served in this country. And our concern
    is that when we look out at the Federal courts to see what they
    have said about that indicia being sufficient for due process,
    we are not comfortable enough that it is enough of a contact
    with the United States in order to permit personal jurisdiction
    to move forward. And that is why we are in support of the
    deterrent mechanisms in the statute, but we would like
    ultimately, I believe, to see a statute that is generally
    silent on the question of personal jurisdiction and lets the
    Federal courts interpret that to the full extent that due
    process would allow.
        Senator Specter. How big a problem is it, Mr. Wimmer, to
    have people trying to enforce libel judgments in the United
    States which do not conform to our interpretation of the First
    Amendment? Is the issue occasional?
        Mr. Wimmer. It is occasional. There have been only a few
    cases, and I think that is largely because a lot of foreign
    libel plaintiffs really never intend to come to the United
    States to enforce. They like the effect of having a foreign
    judgment and the current impact it might have on authors.
        Senator Specter. They like the effect of having a foreign
    judgment that they do not choose to enforce? Why? Why do they
    like that?
        Mr. Wimmer. Well, if they get a judgment that basically
    says, you know, we find that this was an incorrect statement,
    that it was false, that it was malicious, that you should
    apologize to the plaintiff--and foreign default judgments often
    go into a lot more detail than U.S. default judgments--that
    gives them some vindication. They can publish it on websites
    and say, you know, ``The court has found that this book was
    false in its statements about me.''
        So I think, you know, from that perspective it gives them
    some vindication even without enforcing it in the U.S., because
    they know as soon as they come across the border, they have got
    to deal with the First Amendment, and it becomes much harder.
        Senator Specter. Do you support S. 449?
        Mr. Wimmer. I do. I support the bill and appreciate your
    leadership on it. The jurisdictional question, I think Bruce
    has raised some interesting points about that issue. There have
    been some media lawyers who have expressed concerns, not about
    S. 449 but about the topic generally, that if we express the
    view that it only takes a slight amount of contacts to justify
    jurisdiction in our country, at the same time that we are
    trying to tell other countries do not exercise jurisdiction
    over us based just on Internet publication or based just on a
    dozen books making their way across your borders, that we get
    that argument thrown back at us. And so that has been sort of a
    rhetorical concern, but, you know, we do support S. 449.
        Senator Specter. Thank you very much.
        Thank you, Mr. Chairman.
        Senator Whitehouse. Thank you, Senator Specter, and thank
    you for your leadership on this issue. It is one of many areas
    in which you have shown intellectual leadership, but the
    hearing here today is very much a testament to your work on
    this issue.
        I have a couple of questions I would like to get into. I am
    told that generally courts are reluctant to enforce foreign
    judgments that are inconsistent with public policy in the forum
    state. Since the public policy of the United States vis-a-vis
    the First Amendment is quite clear, why is that not a
    sufficient protection in these circumstances? Is it a
    protection at all? And how would you evaluate it?
        Mr. Brown. I could take a stab at answering that.
        Senator Whitehouse. Do we let the common law of this
    develop a little bit more rather than proceed statutorily given
    the problem of----
        Mr. Brown. Right. I think that if I am not mistaken, the
    standard in many States is that such judgments need not be
    enforced. It is not generally a ``shall not'' standard. And so,
    one, you are dealing with State public policy, not the
    constitutional overlay that the First Amendment would provide.
    And, two, you are dealing with a standard that is a ``need
    not'' standard and not a ``shall not'' standard.
        Senator Whitehouse. Gotcha.
        Mr. Brown. And what we like about the possibility of
    Federal legislation is that it would be a ``shall not,'' and it
    would be consistent and uniform nationwide under the First
    Amendment.
        Senator Whitehouse. All right. Let us talk a little bit
    more, then, about the due process problem, the minimum contacts
    and long-arm problem, because that seems to be sort of a
    bedeviling one. Going back to my early law school days, I seem
    to remember such a thing as an in rem proceeding, which related
    to a particular item and, therefore, had less of a minimum
    contacts type issue. I am new to this issue. You have looked at
    it for a long time. Is there any way that you could make the
    publication itself more the subject of the proceeding on a
    traditional in rem basis rather than make the sponsor of the
    litigation overseas the target, which raises more of those
    minimum contacts problems, particularly if there is a
    reciprocality problem between what we are saying they should
    not do and what we are doing ourselves?
        Mr. Wimmer. That is really interesting, Senator Whitehouse.
    I am sort of plumbing the depths of my recollections from law
    school about in rem jurisdiction. I think you could. I do not
    know if you would run into problems with justiciability and
    ripeness because if it is in rem on the article, do you have a
    dispute with the other side that would be sufficient for a
    court to find it to be ripe, which may be an issue that could
    be dealt with. I think it is an interesting idea.
        Senator Whitehouse. Worth taking a little bit further----
        Mr. Brown. And it is something--I would just add I feel
    like I am back in law school and I want to pass because I read
    the wrong assignment.
        [Laughter.]
        Senator Whitehouse. I used to do that myself so do not feel
    bad.
        Mr. Brown. But we could follow up on that in written
    responses after the hearing.
        Senator Whitehouse. Could we make that a request for the
    record and you can follow up in writing on the in rem theory,
    what its limitations are?
        Mr. Wimmer. Certainly. That would be terrific.
        [The information appears as a submission for the record.]
        Senator Whitehouse. Clearly, if you are--as I try to walk
    through the different elements of it, it seems clear, to me
    anyway, that if all you are doing is denying a foreign
    plaintiff a United States forum to execute on a judgment, your
    minimum contacts are kind of OK because as soon as they show up
    to enforce, boom, there are your minimum contacts, you sort of
    cut them off at the doorway. And it strikes me that the long-
    arm problem at that point goes away, or at least it is not a
    concern at least at that point. The question then becomes: If
    they have not moved to do this, if they have taken advantage of
    a foreign court for harassment, public relations, whatever
    other purposes, now how do we engage?
        You have identified it as a problem, but I do not recall
    hearing what your specific recommendation was. Do either of you
    have a specific recommendation on how to solve that?
        Mr. Brown. What I was going to say, as Mr. Wimmer and I
    have both at various times this morning said, there may be some
    parts of the libel tourism conundrum that defy an easy
    resolution; that if a person with no minimum contacts never has
    an intent to enforce in the United States, does not come here
    to do that, even a declaratory judgment action would not reach
    that person. And so one thing that I tried to think about in
    addressing this problem in my written testimony is was there
    some way at least to get the clock ticking on a person over
    whom you might have personal jurisdiction at some point who
    never moves to enforce. And my thinking was if they filed a
    lawsuit in a jurisdiction that, for example, creates a 2-year
    statute of limitations for libel, they sue, they get a default
    judgment or some kind of judgment, within 2 years they have not
    moved to enforce here in the U.S. Well, in their home country
    their laws say within 2 years you should move to try to repair
    reputational harm. You did that. You got a default judgment.
    But 2 years later you still have not tried to enforce it. It
    suggests that there is something dubious about that lawsuit and
    that perhaps if such a person over whom you might have personal
    jurisdiction at some point for a declaratory judgment action,
    that in such an action you might do something more than just
    attorneys' fees, because in the name-clear proceeding, you
    might feel that that is a person where it may be more
    appropriate along this incremental continuum from declaratory
    relief and non-enforcement, perhaps to attorneys' fees and
    damages, where you might entertain doing something more
    aggressive.
        Senator Whitehouse. My time has expired. I will turn to
    Senator Kyl.
        Senator Kyl. Mr. Chairman, I just had one other question.
    Has anybody looked at international treaties to advise us where
    we might potentially find a remedy there, if we were able to
    work with some other countries?
        Mr. Wimmer. We have, Senator Kyl, and----
        Senator Kyl. Excuse me. Or bilateral--not necessarily a
    treaty, but there are various other kinds of bilateral
    agreements and arrangements between different countries.
        Mr. Wimmer. We have, Senator Kyl. One place to focus is the
    European Union because that gets you a large bloc of countries
    at once. There is an e-commerce directive that they have that
    has some helpful provisions as applied to electronic commerce,
    and it is conceivable that you could find a way to use that
    approach to get at this issue.
        Part of the problem, however, is that under the Treaty of
    Rome and some other EU documents, the European Union has given
    this back to the member states as something that is sort of
    core to their sovereignty and so really has not engaged in a
    27-country solution, which is a shame. But I do think that the
    EU is one place to focus, not only because it is a large bloc
    of countries but because any judgment rendered in an EU country
    can be enforced in another one, which increases the stakes for
    publishers in the EU.
        The other possibility--and this is something that members
    of the media have thought about--is focusing on U.S. bilateral
    negotiations with countries as a matter of trade and to say,
    you know, if we are going to have this trade relationship,
    there are certain premises that we need to agree on. We have
    been pretty good at focusing on intellectual property in the
    past few years as an important element of a trade agreement,
    and this could follow on from that in some ways. So I think
    that is a potential area.
        Senator Kyl. It is the latter idea that I had in mind, and
    you do get into bilateral, but you can--I mean, I am not sure
    whether we could go to the World Trade Organization, whether
    that would be a good idea. But at a minimum, intellectual
    property could form the basis for bilateral agreements among
    countries, and it is possible that if the Congress were to pass
    at least the minimum kind of law--and I would like to see
    something that has a deterrent effect in it as well--and then
    began beating the drum pretty loudly with these other countries
    that this is a problem we need to address and their relations
    with the United States could see some setback in certain areas
    if they did not seriously address it with us, then it is quite
    conceivable that we could get agreement on this.
        I also think that there--I mean, the big white elephant in
    the room that nobody is mentioning here is there is one
    particular--at least I guess I could ask you. Is there one sort
    of predominant theme in these cases or a particular kind of
    case that is being brought, and isn't that the real problem
    that we are trying to deal with here?
        Mr. Wimmer. Well, one theme that emerges in several cases
    is the funding of terrorism, and that may be a consequence of a
    particular plaintiff who has been extremely active. There are a
    number of Russian oligarch cases that typically occur in
    England. Unfortunately, there are U.S. celebrity cases that go
    to Ireland. So, in a way, you know, we have met the enemy and
    it is us.
        But the theme, I am not aware of a particular theme where
    you could sort of say if we could deal with the substance of X,
    we could cut back on these suits.
        Senator Kyl. Well, at least the cases I am aware of,
    personally aware of, do get into the issue of intimidation
    against those who blow the whistle on terrorist support.
        Mr. Wimmer. Right, and I agree completely with that.
        Senator Kyl. I want to thank you both again, and I have a
    feeling that we are going to use you as a resource on the
    Committee here.
        Thanks, Mr. Chairman.
        Senator Whitehouse. Thank you, Senator Kyl.
        Senator Franken.
        Senator Franken. A couple questions. Mr. Brown, you talked
    about ``may'' versus ``shall'' in terms of not enforcing. Has
    one of these ever been enforced in the United States? In other
    words, has some judgment in England ever been enforced in the
    United States?
        Mr. Brown. Not that I can recall.
        Senator Franken. So if it has never happened, it does not
    seem like that aspect of it is a major problem, the ``shall''
    versus ``may.''
        Mr. Brown. Well, again, though, in our written testimony,
    as we describe more fully, only having two States at this
    point--New York and Maryland--having confronted this issue, and
    knowing that the standard is what it is, there is a lot of
    uncertainty still----
        Senator Franken. Well, I like the idea of a Federal law on
    this, but I just wanted to know that.
        Is there a commercial dimension to this which is much more
    like someone writes that some drug does not work and they get
    sued in some other countries? In other words, is this more than
    just First Amendment--and that is First Amendment, too, but is
    there a whole different dimension to this? Because I think
    there was some mention, some hint of that in your answer to
    Senator Kyl.
        Mr. Brown. Well, I would just say that even though there
    are some common themes in a lot of these cases, as Mr. Wimmer
    just described, involving international terrorism, national
    security issues, through the years I have been involved in some
    situations with authors where--in one case, for example, a book
    that is about to be published, and the international
    businessman who grew up in Pennsylvania went to Asia to start a
    scrap metal business and grew it very successfully, is now
    publishing a book about his experiences in different parts of
    the world working in those different business cultures. He is
    an American. The book will be published here. He was very
    concerned about being sued overseas because of some of the
    different business conflicts that he writes about, situations
    that took place in Malaysia, Germany, Hong Kong. And he was so
    concerned about it that he went out and bought himself $2
    million worth of libel insurance on the book because he felt
    that he could not risk that exposure of being sued in a foreign
    jurisdiction.
        Senator Franken. But, still, he is writing the book. I am
    talking about someone who writes in a trade magazine or writes
    in the New York Times or writes somewhere else that this car
    has a problem or this drug has a problem or that kind of thing,
    a product with a problem.
        Mr. Wimmer. It is interesting you would ask. The U.N. Human
    Rights Commission took a look at this about a year and half and
    issued a report, and as much as we love the media, they were
    really focused on scholars and scientists and other people who
    might want to do scientific research and would have a case like
    this brought against them to stifle the results of that
    research and found that it could be an issue.
        You know, I am not aware of too much of that yet here,
    but----
        Senator Franken. OK. Let me talk about the celebrity cases
    because, you know, we do have a First Amendment right to know
    what celebrities are going out with other celebrities, and I
    think we desperately need to protect that, and what celebrities
    are behaving badly, someone accused them of behaving badly, but
    no one else saw, and we certainly have the right of things like
    the National Enquirer and other publications to print that
    third-hand piece of knowledge that they took no effort to
    actually corroborate. And sometimes these celebrities will go
    to Ireland or somewhere and say that these publications should
    not be doing this. I mean, is there something to be said for
    protecting people's privacy in some way and being able to go to
    some place and get a judgment saying this is based on
    absolutely nothing?
        Mr. Wimmer. Well, one result of that--and, you know, there
    are very different standards for privacy overseas and
    particularly in Europe than the U.S., without question. The
    National Enquirer, in fact, as I understand it, is now blocking
    the IP addresses of anyone in Ireland because they have had
    such a problem being sued in Ireland over material published
    about U.S. celebrities in the U.S. that they are trying to use
    that as a way that they could defend themselves against
    jurisdiction there to say, look, not only do we not print in
    Ireland, we block the IP addresses of anyone from Ireland who
    is trying to access our content.
        So it does create--and I know this is not the question you
    have asked, but it does create a possible model that we could
    see rolling out for the future where countries sort of get
    blocked because of the way their courts are being used.
        Mr. Brown. And I would just add to that that no one is
    suggesting a Federal bill that refuses to enforce a foreign
    judgment or provides declaratory relief over any foreign
    judgment simply because it is foreign in nature. The American
    author or journalist would still have to be able to show that
    it does not comport with the First Amendment. And we know that
    celebrities have had success bringing these lawsuits within the
    United States and winning them here. And we would certainly be
    certain not to refuse to enforce a judgment simply because it
    was foreign in nature. We really would look at its
    compatibility with First Amendment standards.
        Senator Franken. Thank you, Mr. Chairman.
        Senator Whitehouse. Thank you, Senator Franken.
        Gentlemen, do foreign criminal libel laws bear on this in
    any way that is different or should get some special mention
    here before the hearing concludes?
        Mr. Brown. I was just going to say that there is a case
    pending right now in which I believe the possibility of foreign
    criminal libel jurisdiction has been threatened against a New
    York Times travel reporter involving an article he wrote
    concerning an airline crash with a Brazilian jetliner that he
    miraculously survived. He has been sued in Brazil. I understand
    it is still civil, but there has been a threat of something
    more severe than that. And I do think perhaps in our follow-up
    testimony to the Committee that is something that we should
    explore because there are many jurisdictions in the world that
    do still have criminal libel jurisdiction.
        Senator Whitehouse. But for the time being, if you are
    evaluating the scope of the problem, it is in the civil side,
    not in the criminal side so far.
        Mr. Wimmer. It varies a bit by country. In France, for
    example, it is much more common to have a criminal libel action
    brought because that is just the way it is done. In fact,
    ironically enough, English companies sometimes go to France to
    obtain French criminal libel judgments against other English
    publications. So I guess the libel tourism could happen that
    way as well.
        But I think it is important to point out that we do not
    exercise criminal libel jurisdiction very much in the U.S.,
    although there are a few statutes still on the books. But it is
    very common elsewhere, especially in civil law jurisdictions.
    So I do see that as a potential issue for the future.
        Senator Whitehouse. OK. Well, then, I would encourage you
    to follow up in your written responses as well on that.
        Obviously, Senator Specter's bill is carefully and
    thoughtfully drawn, as is all his work. But we also have
    another bill, Representative Cohen's bill, which has the
    advantage of having cleared the House of Representatives, and
    minimizing differences between Senate and House product can be
    valuable.
        If we were to start with the Cohen bill as a point of
    departure on this subject, what would be your most significant
    recommendations as to ways in which you think it should be
    improved, or if you really think it has to be improved in
    certain ways in order to be effective and ways in which you
    think it must be improved?
        Mr. Brown. Well, the first thing I would do is add a
    declaratory relief provision to it, that it currently focuses
    on the non-enforceability of judgments. And I would add the
    declaratory relief, and then I would think about what I could
    do in the area of attorneys' fees for that declaratory relief
    proceeding as well.
        Mr. Wimmer. Yes, I agree with that.
        Senator Whitehouse. And the problem of minimum contacts is
    the same problem whether it is attorneys' fees or--I mean, you
    either have minimum contact or you do not. Whether you are
    trying to get jurisdiction over somebody for an order or for a
    judgment or for damage or for attorneys' fees, it is all the
    same. Correct?
        Mr. Brown. Right. And that is why I think the legislation
    could ultimately be silent on the personal jurisdiction issue
    as it pertains minimum contacts.
        Senator Whitehouse. Sort itself out as this all develops.
        Mr. Brown. Right.
        Senator Whitehouse. So that would be your recommendation on
    that subject, to let it sort itself out as the case law
    develops rather than try to define it specifically in the
    statute.
        Mr. Wimmer. Although I think we would recommend that it
    provide as a matter of national policy that jurisdiction extend
    to the limits of the Due Process Clause.
        Mr. Brown. Right. Yes.
        Mr. Wimmer. But aside from that, I think you could be
    silent on it and let the courts figure that out in the context
    of each case.
        Senator Whitehouse. All right. Well, this has been very
    helpful. I appreciate it. I do not think there is any other
    further business. The record will remain open for an
    additional--is a week enough to get it in?
        Mr. Wimmer. Oh, sure.
        Senator Whitehouse. Very good. The record will remain open
    for an additional week, and I thank you both for your
    testimony. This has been a helpful hearing.
        [Whereupon, at 11:20 a.m., the Committee was adjourned.]
        [Questions and answers and submissions for the record
    follow.]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]