[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









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                       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.]

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