[Congressional Record Volume 155, Number 30 (Friday, February 13, 2009)]
[Senate]
[Pages S2342-S2343]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. SPECTER (for himself, Mr. Lieberman, and Mr. Schumer):
  S. 449. A bill to protect free speech; to the Committee on the 
Judiciary.
  Mr. SPECTER. Mr. President. I am introducing the Free Speech 
Protection Act of 2009 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 libel 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 United 
States by U.S. journalists, and is published or disseminated primarily 
in the United States. 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.
  An example of why the legislation is necessary is found in 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 United States.
  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 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 action. I 
note that the person who sued Dr. Ehrenfeld has filed dozens of 
lawsuits in England, and 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. Other countries should 
be free to have their own libel law, but so too should the United 
States. Venues that have become magnets for defamation plaintiffs from 
around the world permit those who want to intimidate our journalists to 
succeed in doing so. The stakes are high. The United Nations in 2008 
noted the importance of free speech and a free press, and the threat 
that libel tourism poses to the world.
  Following the New York example, the legislation my co-sponsors and I 
introduce today confers jurisdiction on federal courts to bar 
enforcement of foreign libel judgments if the material at issue would 
not constitute libel under U.S. law. Significantly, it also deters 
foreign suits in the first place by permitting American defendants to 
countersue from the moment papers are served on them. Damages available 
in the countersuit include the amount at issue in the foreign libel 
suit as well as treble damages if the foreign suit is part of a scheme 
to suppress a U.S. person's first amendment rights.
  This deterrent mechanism is critical because those who bring these 
foreign libel suits are more interested in intimidating the authors 
than in actually collecting damages. They know that even if a foreign 
judgment cannot be enforced in the United States, the cost of defending 
the suit and the penalty for taking a default judgment can have a 
chilling effect on American writers and publishers. In particular, 
under English law a contempt citation may issue against authors or 
publishers who fail to satisfy default judgments, pursuant to which 
their property may be seized and they may be imprisoned. What is worse, 
defendants can no longer skirt the consequences merely by avoiding 
contact with England. Under recent European Commission regulations, 
default judgments for monetary claims are enforceable in all EU 
countries except Denmark.
  The potentially severe ramifications of a default judgment make clear 
that merely barring enforcement of a foreign libel judgment in U.S. 
courts is entirely insufficient particularly for publishers with 
European offices. While it is important to bar enforcement, in the 
words of a New York Times editorial, that does ``not go as far as it 
could.''
  I often remark that the Senate is the world's greatest deliberative 
body and all the facts and arguments ought to be examined before it 
acts. Accordingly, I must address a letter in opposition to this bill 
from a prominent British libel lawyer and explain why his arguments are 
unpersuasive.
  He notes that a ``U.S. citizen . . . knocked down by the negligent 
driving'' of a London taxi driver is ``just as entitled as any British 
citizen'' to sue in England for damages. Why should a U.S. citizen 
``not be entitled on the same basis, like any other UK citizen, to sue 
for damages to his reputation?'' The answer, of course, is that the 
analogy is inapt. In that hypothetical, the plaintiff sues the 
defendant in the defendant's jurisdiction for a harm committed and 
suffered there, an injury that is universally recognized as a tort. By 
contrast, the plaintiff in a foreign libel action purposely avoids 
suing in the jurisdiction where the defendant journalist writes and 
publishes, a jurisdiction where the material is not libelous. The 
proper analogy would be if the injured American had sued the taxi 
driver in the United States instead of England because the driver's 
conduct would not constitute negligence under English law. That hardly 
seems fair play. Our bill is designed specifically to prevent such 
forum shopping.
  That essay also asks whether ``legislators will extend their 
intervention'' to commercial matters such as contracts and debts and 
warns that such extension could trigger ``retaliatory action on the 
part of UK legislators.'' Actually, such extension has already 
happened, but at the hands of British legislators not American ones. In 
the antitrust context, British law bars enforcement of foreign 
judgments for treble damages such as those awarded by U.S. courts. In 
addition, it allows a British corporation, against whom a judgment for 
treble damages was entered in a foreign court, to recover from the 
plaintiff any excess over actual damages. In any event, this bill is 
confined to the narrow area of core First Amendment rights.
  ``Perhaps of most significance'' he continues in his letter, is that 
to his knowledge ``very few of these claims have actually come before 
UK courts.'' But it is the chilling effect and the

[[Page S2343]]

mere threat of litigation that suffices to silence authors; there is no 
need to try the cases. In 2004, fear of a lawsuit forced Random House 
UK to cancel publication of ``House of Bush, House of Saud,'' a best 
seller in the U.S. that was written by an American author. Similarly, 
in 2007, the threat of a lawsuit compelled Cambridge University Press 
to apologize and destroy all available copies of ``Alms for Jihad,'' a 
book on terrorism funding by American authors. Indeed, an October 2008 
study reported in The Guardian found that ``[m]edia companies are 
becoming less willing to fight defamation court cases all the way to a 
verdict. . . . With the burden of proof effectively resting on the 
defendant'' and attorneys' fees paid by the loser, defendants ``are 
forced to enter into settlement negotiations.''
  Numerous organizations have endorsed the bill we offer today, 
including the ACLU and the Anti-Defamation League, as well as numerous 
journalists and publishers groups. Op-eds and editorials supporting our 
efforts have run in national papers, including the New York Times on 
September 15, 2008 and the New York Sun on July 28, 2008. Also drawing 
attention to the issue was an op-ed Senator Lieberman and I penned that 
ran in the Wall Street Journal on July 14, 2008.
  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 Senators Lieberman and Schumer, as well as Congressman Pete 
King and his cosponsors for working with me on this important bill.
                                 ______