[Congressional Record Volume 156, Number 94 (Tuesday, June 22, 2010)]
[Senate]
[Pages S5275-S5276]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEAHY (for himself, Mr. Sessions, Mr. Specter, Mr. 
        Schumer, and Mr. Lieberman):
  S. 3518. A bill to amend title 28, United States Code, to prohibit 
recognition and enforcement of foreign defamation judgments in United 
States Courts where those judgments undermine the first amendment to 
the Constitution of the United States, and to provide a cause of action 
for declaratory judgment relief against a party who has brought a 
successful foreign defamation action whose judgment undermines the 
first amendment; to the Committee on the Judiciary.
  Mr. LEAHY. Mr. President, two years ago the United Nations' Human 
Rights Committee observed a problem that ``discourage[d] critical media 
reporting on matters of serious public interest, adversely affect[ed] 
the ability of scholars and journalists to publish their work,'' and 
``affect[ed] freedom of expression worldwide on matters of valid public 
interest.'' That problem was ``libel tourism,'' a troubling trend of 
foreign lawsuits that have stifled Americans' First Amendment rights. 
Today, I am introducing legislation to put a stop to this harmful 
trend.
  The First Amendment is a cornerstone of American democracy. Freedom 
of speech and the press enable vigorous debate over issues of national 
importance, and enable an exchange of ideas that shapes our political 
process. Authors, reporters and publishers are primary sources of this 
information, and their ability to disseminate their writings is 
critical to our democracy.
  Over recent years, American authors, reporters and publishers have 
fallen victim to libel lawsuits in countries with significantly weaker 
free speech protections that what our First Amendment affords. In many 
cases, the foreign plaintiff sought out that country, where there is no 
regard for freedom of the press, so that they could easily prevail. 
These suits occur regardless of whether the plaintiff or the 
publication has significant connections to the foreign forum. On a 
broad scale, this results in a race to the bottom, and causes U.S. 
persons to defer to the country with the most chilling and restrictive 
free speech standard, to determine what they can or cannot write or 
publish. This is libel tourism. As the son of a printer, I consider 
this a matter of great national importance.
  Today, I am introducing with Senators Sessions, Specter, Schumer and 
Lieberman legislation that will ensure American authors, journalists 
and publishers are shielded from the chilling effects of libel tourism. 
This legislation guarantees that a foreign defamation judgment cannot 
be enforced in the United States if that country's libel standards are 
inconsistent with American law. Our legislation also provides American 
victims of unconstitutional libel suits the opportunity to clear their 
name by filing for a declaratory judgment in an American court.
  Over the past several years, the problem of libel tourism has grown. 
Today, countries whose weak libel laws impact American authors are no 
longer confined to a small number. England, Brazil, Australia, 
Indonesia, and Singapore are just a few of the countries whose weak 
libel protections have attracted libel lawsuits against American 
journalists and authors. This threat to American free speech must end, 
and the time to act is now.
  New accounts of libel tourism lawsuits emerge every day. This is 
because the dissemination of materials through the Internet, as well as 
the increased number of worldwide newspapers and periodicals, has 
compounded their threat. The likelihood that a book or story will have 
some contact with a foreign country is simply that much higher, as is 
the probability that a foreign court will determine that it has a basis 
for asserting jurisdiction over an American author or publisher. As we 
heard at a recent Judiciary Committee hearing, this has a dramatic 
chilling effect on Americans' free speech.
  The impact and extreme nature of these foreign libel lawsuits is best 
understood through examples. The most well known is the case of 
American journalist Rachel Ehrenfeld, who wrote a book about the 
financiers of the 9/11 attacks. She did not market her book in England 
yet was sued for libel there by a Saudi businessman she linked to 
terrorism. The content of her publication would have been protected 
under our laws, but a British court applying its laws issued a 
multimillion dollar default judgment against her. Today, Ms. Ehrenfeld 
continues to experience reluctance from American publishers who fear 
that plaintiffs will target her and bring another libel action against 
anything she writes on the subject of terrorism financing.
  The scientific community has also been affected by libel tourism. An 
article last year in New Scientist magazine notes that now 
``Challenging the scientific validity of a product or claim can be 
fraught with danger. . . [because] such challenges are leaving 
scientists and science writers [to] fac[e] an expensive libel action 
before the English high court. Many individuals and publications have 
been threatened with libel actions, and some have had proceedings 
launched against them. Many more writers have had their work edited 
before publication to avoid any risk of such legal action.'' 
Publications exposing financial improprieties, consumer protection 
issues, medical malpractice, and sexual abuse have all fallen victim to 
libel tourism lawsuits around the world.
  Even Roman Polanski sued Vanity Fair for libel in England. Mr. 
Polanski, a fugitive from justice who fled America after being 
convicted of sexually abusing a young girl, filed the suit in 2004. He 
has fought extradition while living in Europe. The Vanity Fair article 
recounted a story of his alleged aggressive sexual advances made just 
after his wife was murdered, and portrayed him as being insensitive to 
her death. The article was written in the U.S., edited in the U.S., and 
primarily sold in the U.S., but the British court claimed jurisdiction, 
and ruled in favor of Mr. Polanski.
  Foreign libel judgments impact American authors' livelihood, 
credibility and employment potential. They also have the potential to 
limit the types of books and articles that talented and reputable 
authors can get published in the future. But most importantly, their 
suppression limits the information that Americans have a constitutional 
right to access. Journalists writing about issues of national security 
and safety should not be chilled. These lawsuits are designed to stifle 
the dissemination of that information in both the United States and the 
world. Journalists willing to investigate and write about such 
important issues deserve protection.
  I am encouraged that some countries have taken steps to strengthen 
their

[[Page S5276]]

libel protections and jurisdictional requirements in the wake of these 
lawsuits, but that is not enough. As one country tightens its libel 
protections, another may just emerge as the next-best-available forum 
of choice for libel plaintiffs willing to travel to file suit.
  I want to thank the ranking member of the Judiciary Committee, 
Senator Sessions, for working with me on this legislation. I also want 
to thank Senators Schumer and Specter, for their support in moving 
toward a legislative compromise on this important issue. Their bills 
provided a valuable basis from which the bipartisan compromise that we 
are introducing today emerged.
  We cannot legislate changes to foreign law that are chilling 
protected speech in our country. What we can do, however, is ensure 
that our courts do not become a tool to uphold foreign libel judgments 
that undermine our First Amendment or due process rights. We can also 
provide American authors and reporters the ability to clear their name 
in our courts.
  I hope all Senators will support our bipartisan effort to pass this 
important legislation this summer to protect the free speech rights of 
all Americans.
                                 ______