[Congressional Record Volume 154, Number 74 (Tuesday, May 6, 2008)]
[Senate]
[Pages S3793-S3794]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. SPECTER (for himself and Mr. Lieberman):
  S. 2977. A bill to create a Federal cause of action to determine 
whether defamation exists under United States law in cases in which 
defamation actions have been brought in foreign courts against United 
States persons on the basis of publications or speech in the United 
States; to the Committee on the Judiciary.
  Mr. SPECTER. Mr. President, I am introducing the Free Speech 
Protection Act of 2008 to address a serious challenge to one of the 
most basic protections in our Constitution. American journalists and 
academics must have the freedom to investigate, write, speak, and 
publish about matters of public importance, limited only by the legal 
standards laid out in our First Amendment jurisprudence, including 
precedents such as New York Times v. Sullivan. Despite the protection 
for free speech under our own law, the rights of the American public, 
and of American journalists who share information with the public, are 
being threatened by the forum shopping of defamation suits to foreign 
courts with less robust protections for free speech.
  These suits are filed in, and entertained by, foreign courts, despite 
the fact that the challenged speech or writing is written in the U.S. 
by U.S. journalists, and is published or disseminated primarily in the 
U.S. The plaintiff in these cases may have no particular connection to 
the country in which the suit is filed. Nevertheless, the U.S. 
journalists or publications who are named as defendants in these suits 
must deal with the expense, inconvenience, and distress of being sued 
in foreign courts, even though their conduct is protected by the First 
Amendment.
  The impetus for this legislation is litigation involving Dr. Rachel 
Ehrenfeld, a U.S. citizen and Director of the American Center for 
Democracy, whose articles have appeared in the Wall Street Journal, the 
National Review, and the Los Angeles Times. She has been a scholar with 
Columbia University, the University of New York School of Law, and 
Johns Hopkins, and has testified before Congress. Dr. Ehrenfeld's 2003 
book, Funding Evil: How Terrorism is Financed and How to Stop it, which 
was published solely in the United States by a U.S. publisher, alleged 
that a Saudi Arabian subject and his family financially supported al 
Qaeda in the years preceding the attacks of September 11. He sued 
Ehrenfeld for libel in England, although only 23 books were sold there. 
Why? Because under English law, it is not necessary for a libel 
plaintiff to prove falsity or actual malice as is required in the U.S.
  Dr. Ehrenfeld did not appear, and the English court entered a default 
judgment for damages, an injunction against publication in the United 
Kingdom, a ``declaration of falsity'', and an

[[Page S3794]]

order that she and her publisher print a correction and an apology.
  Dr. Ehrenfeld sought to shield herself with a declaration from both 
Federal and State courts that her book did not create liability under 
American law, but jurisdictional barriers prevented both the Federal 
and New York State courts from acting. Reacting to this problem, the 
Governor of New York, on May 1, 2008, signed into law the ``Libel 
Terrorism Protection Act.'' Congress must now take similar prompt 
action. I note that the person who sued Dr. Ehrenfeld has filed dozens 
of lawsuits in England. There is a real danger that other American 
writers and researchers will be afraid to address this crucial subject 
of terror funding and other important matters. England should be free 
to have its own libel law, but so too should the U.S. England has 
become a popular venue for defamation plaintiffs from around the world, 
including those who want to intimidate our journalists. The stakes are 
high. This legislation is important.
  This legislation creates a Federal cause of action and Federal 
jurisdiction so that Federal courts may determine whether there has 
been defamation under U.S. law when a U.S. journalist, speaker, or 
academic is sued in a foreign court for speech or publication in the 
U.S. The bill authorizes a court to issue an order barring enforcement 
of a foreign judgment and to award damages.
  Freedom of speech, freedom of the press, freedom of expression of 
ideas, opinions, and research, and freedom of exchange of information 
are all essential to the functioning of a democracy. They are also 
essential in the fight against terrorism.
  I thank Senator Lieberman for working with me on this important bill.
                                 ______