[Congressional Record Volume 156, Number 106 (Monday, July 19, 2010)]
[Senate]
[Pages S5978-S5980]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




SECURING THE PROTECTION OF OUR ENDURING AND ESTABLISHED CONSTITUTIONAL 
                                HERITAGE

  Mr. LEAHY. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of Calendar No. 460, H.R. 2765.
  The ACTING PRESIDENT pro tempore. The clerk will report the bill by 
title.
  The legislative clerk read as follows:

       A bill (H.R. 2765) to amend title 28, United States Code, 
     to prohibit recognition and enforcement of foreign defamation 
     judgments and certain foreign judgments against the providers 
     of interactive computer services.

  There being no objection, the Senate proceeded to consider the bill, 
which had been reported from the Committee on the Judiciary, with an 
amendment to strike all after the enacting clause and insert in lieu 
thereof the following:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Securing the Protection of 
     our Enduring and Established Constitutional Heritage Act'' or 
     the ``SPEECH Act''.

     SEC. 2. FINDINGS.

       Congress finds the following:
       (1) The freedom of speech and the press is enshrined in the 
     first amendment to the Constitution, and is necessary to 
     promote the vigorous dialogue necessary to shape public 
     policy in a representative democracy.
       (2) Some persons are obstructing the free expression rights 
     of United States authors and publishers, and in turn chilling 
     the first amendment to the Constitution of the United States 
     interest of the citizenry in receiving information on matters 
     of importance, by seeking out foreign jurisdictions that do 
     not provide the full extent of free-speech protections to 
     authors and publishers that are available in the United 
     States, and suing a United States author or publisher in that 
     foreign jurisdiction.
       (3) These foreign defamation lawsuits not only suppress the 
     free speech rights of the defendants to the suit, but inhibit 
     other written speech that might otherwise have been written 
     or published but for the fear of a foreign lawsuit.
       (4) The threat of the libel laws of some foreign countries 
     is so dramatic that the United Nations Human Rights Committee 
     examined the issue and indicated that in some instances the 
     law of libel has served to discourage critical media 
     reporting on matters of serious public interest, adversely 
     affecting the ability of scholars and journalists to publish 
     their work. The advent of the internet and the international 
     distribution of foreign media also create the danger that one 
     country's unduly restrictive libel law will affect freedom of 
     expression worldwide on matters of valid public interest.
       (5) Governments and courts of foreign countries scattered 
     around the world have failed to curtail this practice of 
     permitting libel lawsuits against United States persons 
     within their courts, and foreign libel judgments inconsistent 
     with United States first amendment protections are 
     increasingly common.

     SEC. 3. RECOGNITION OF FOREIGN DEFAMATION JUDGMENTS.

       (a) In General.--Part VI of title 28, United States Code, 
     is amended by adding at the end the following:

                    ``CHAPTER 181--FOREIGN JUDGMENTS

``Sec.
``4101. Definitions.
``4102. Recognition of foreign defamation judgments.
``4103. Removal.
``4104. Declaratory judgments.
``4105. Attorney's fees.

[[Page S5979]]

     ``Sec. 4101. Definitions

       ``In this chapter:
       ``(1) Defamation.--The term `defamation' means any action 
     or other proceeding for defamation, libel, slander, or 
     similar claim alleging that forms of speech are false, have 
     caused damage to reputation or emotional distress, have 
     presented any person in a false light, or have resulted in 
     criticism, dishonor, or condemnation of any person.
       ``(2) Domestic court.--The term `domestic court' means a 
     Federal court or a court of any State.
       ``(3) Foreign court.--The term `foreign court' means a 
     court, administrative body, or other tribunal of a foreign 
     country.
       ``(4) Foreign judgment.--The term `foreign judgment' means 
     a final judgment rendered by a foreign court.
       ``(5) State.--The term `State' means each of the several 
     States, the District of Columbia, and any commonwealth, 
     territory, or possession of the United States.
       ``(6) United states person.--The term `United States 
     person' means--
       ``(A) a United States citizen;
       ``(B) an alien lawfully admitted for permanent residence to 
     the United States;
       ``(C) an alien lawfully residing in the United States at 
     the time that the speech that is the subject of the foreign 
     defamation action was researched, prepared, or disseminated; 
     or
       ``(D) a business entity incorporated in, or with its 
     primary location or place of operation in, the United States.

     ``Sec. 4102. Recognition of foreign defamation judgments

       ``(a) First Amendment Considerations.--
       ``(1) In general.--Notwithstanding any other provision of 
     Federal or State law, a domestic court shall not recognize or 
     enforce a foreign judgment for defamation unless the domestic 
     court determines that--
       ``(A) the defamation law applied in the foreign court's 
     adjudication provided at least as much protection for freedom 
     of speech and press in that case as would be provided by the 
     first amendment to the Constitution of the United States and 
     by the constitution and law of the State in which the 
     domestic court is located; or
       ``(B) even if the defamation law applied in the foreign 
     court's adjudication did not provide as much protection for 
     freedom of speech and press as the first amendment to the 
     Constitution of the United States and the constitution and 
     law of the State, the party opposing recognition or 
     enforcement of that foreign judgment would have been found 
     liable for defamation by a domestic court applying the first 
     amendment to the Constitution of the United States and the 
     constitution and law of the State in which the domestic court 
     is located.
       ``(2) Burden of establishing application of defamation 
     laws.--The party seeking recognition or enforcement of the 
     foreign judgment shall bear the burden of making the showings 
     required under subparagraph (A) or (B).
       ``(b) Jurisdictional Considerations.--
       ``(1) In general.--Notwithstanding any other provision of 
     Federal or State law, a domestic court shall not recognize or 
     enforce a foreign judgment for defamation unless the domestic 
     court determines that the exercise of personal jurisdiction 
     by the foreign court comported with the due process 
     requirements that are imposed on domestic courts by the 
     Constitution of the United States.
       ``(2) Burden of establishing exercise of jurisdiction.--The 
     party seeking recognition or enforcement of the foreign 
     judgment shall bear the burden of making the showing that the 
     foreign court's exercise of personal jurisdiction comported 
     with the due process requirements that are imposed on 
     domestic courts by the Constitution of the United States.
       ``(c) Judgment Against Provider of Interactive Computer 
     Service.--
       ``(1) In general.--Notwithstanding any other provision of 
     Federal or State law, a domestic court shall not recognize or 
     enforce a foreign judgment for defamation against the 
     provider of an interactive computer service, as defined in 
     section 230 of the Communications Act of 1934 (47 U.S.C. 230) 
     unless the domestic court determines that the judgment would 
     be consistent with section 230 if the information that is the 
     subject of such judgment had been provided in the United 
     States.
       ``(2) Burden of establishing consistency of judgment.--The 
     party seeking recognition or enforcement of the foreign 
     judgment shall bear the burden of establishing that the 
     judgment is consistent with section 230.
       ``(d) Appearances Not a Bar.--An appearance by a party in a 
     foreign court rendering a foreign judgment to which this 
     section applies shall not deprive such party of the right to 
     oppose the recognition or enforcement of the judgment under 
     this section, or represent a waiver of any jurisdictional 
     claims.
       ``(e) Rule of Construction.--Nothing in this section shall 
     be construed to--
       ``(1) affect the enforceability of any foreign judgment 
     other than a foreign judgment for defamation; or
       ``(2) limit the applicability of section 230 of the 
     Communications Act of 1934 (47 U.S.C. 230) to causes of 
     action for defamation.

     ``Sec. 4103. Removal

       ``In addition to removal allowed under section 1441, any 
     action brought in a State domestic court to enforce a foreign 
     judgment for defamation in which--
       ``(1) any plaintiff is a citizen of a State different from 
     any defendant;
       ``(2) any plaintiff is a foreign state or a citizen or 
     subject of a foreign state and any defendant is a citizen of 
     a State; or
       ``(3) any plaintiff is a citizen of a State and any 
     defendant is a foreign state or citizen or subject of a 
     foreign state,
     may be removed by any defendant to the district court of the 
     United States for the district and division embracing the 
     place where such action is pending without regard to the 
     amount in controversy between the parties.

     ``Sec. 4104. Declaratory judgments

       ``(a) Cause of Action.--
       ``(1) In general.--Any United States person against whom a 
     foreign judgment is entered on the basis of the content of 
     any writing, utterance, or other speech by that person that 
     has been published, may bring an action in district court, 
     under section 2201(a), for a declaration that the foreign 
     judgment is repugnant to the Constitution or laws of the 
     United States. For the purposes of this paragraph, a judgment 
     is repugnant to the Constitution or laws of the United States 
     if it would not be enforceable under section 4102 (a), (b), 
     or (c).
       ``(2) Burden of establishing unenforceability of 
     judgment.--The party bringing an action under paragraph (1) 
     shall bear the burden of establishing that the foreign 
     judgment would not be enforceable under section 4102 (a), 
     (b), or (c).
       ``(b) Nationwide Service of Process.--Where an action under 
     this section is brought in a district court of the United 
     States, process may be served in the judicial district where 
     the case is brought or any other judicial district of the 
     United States where the defendant may be found, resides, has 
     an agent, or transacts business.

     ``Sec. 4105. Attorneys' fees

       ``In any action brought in a domestic court to enforce a 
     foreign judgment for defamation, including any such action 
     removed from State court to Federal court, the domestic court 
     shall, absent exceptional circumstances, allow the party 
     opposing recognition or enforcement of the judgment a 
     reasonable attorney's fee if such party prevails in the 
     action on a ground specified in section 4102 (a), (b), or 
     (c).''.
       (b) Sense of Congress.--It is the Sense of the Congress 
     that for the purpose of pleading a cause of action for a 
     declaratory judgment, a foreign judgment for defamation or 
     any similar offense as described under chapter 181 of title 
     28, United States Code, (as added by this Act) shall 
     constitute a case of actual controversy under section 2201(a) 
     of title 28, United States Code.
       (c) Technical and Conforming Amendment.--The table of 
     chapters for part VI of title 28, United States Code, is 
     amended by adding at the end the following:

``181. Foreign judgments...................................4101.''.....

  Mr. LEAHY. Mr. President, I ask unanimous consent that the committee-
reported substitute amendment be agreed to, the bill, as amended, be 
read a third time and passed, the motions to reconsider be laid upon 
the table, with no intervening action or debate, and any statements 
related to the bill be printed in the Record.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The committee amendment in the nature of a substitute was agreed to.
  The amendment was ordered to be engrossed and the bill to be read a 
third time.
  The bill was read the third time.
  The bill (H.R. 2765), as amended, was passed.
  Mr. LEAHY. Mr. President, today the Senate has passed important 
bipartisan legislation to reduce the chilling effect that foreign libel 
lawsuits are having on Americans' first amendment rights.
  I am the son of printers and I consider this a matter of great 
importance. My parents told me from the time I was a child: Believe in 
and uphold the first amendment. It is the basis of our democracy. It 
guarantees us the right to practice any religion we want or none if we 
want. And it protects the right of free speech. Those protections 
guarantee diversity. If you have a constitution that guarantees 
diversity, you guarantee a democracy.
  That is what this does. I wish to thank Senator Sessions, the ranking 
member of the Senate Judiciary Committee, for working with me on this 
bill.
  Let me speak a little bit about what the bill does. The Securing the 
Protection of our Enduring and Established Constitutional Heritage Act 
or, as we call it, the SPEECH Act, will ensure that American courts 
will not enforce foreign libel judgments from countries where free 
speech protections are lower than what our Constitution affords against 
American journalists, authors, and publishers.
  Too frequently, foreign plaintiffs bring libel suits against American 
writers and publishers in countries where the plaintiff or the 
publication lacks any significant connection to the foreign forum. The 
lawsuit is brought there because of that foreign country's weaker 
plaintiff-friendly libel laws. This is known colloquially as libel 
tourism.
  In other words, if somebody in the United States writes a book, 
probably

[[Page S5980]]

very accurate, about some despot or some leader of a country who has 
done criminal acts, has stolen the property of that country or any one 
of a number of things--it could be very accurate and, in our country, 
truth is a defense--what they will do is maybe order online a couple 
copies of the books and deliver them to another country with weak libel 
laws and then seek judgments against the author, against the publisher, 
against newspapers that may have published excerpts of it; everything 
to chill any criticism of those who have either breached human rights 
or stolen from their own country and on and on.
  On a broad scale, libel tourism results in a race to the bottom. It 
causes America to defer to a country with the most chilling and 
restrictive free speech standard determining what they can write or 
publish. This undermines our first amendment. The first amendment, as I 
said earlier, guarantees the diversity of thought and opinion in this 
country which actually allows and determines and guarantees that 
democracy.
  The freedoms of speech and the press are cornerstones of our 
democracy. They enable vigorous debate, and an exchange of ideas that 
shapes our political process. Reporters, authors and publishers are 
among the primary sources of these ideas, and their ability to 
disseminate them through their writings is critical to our democracy. 
The broad dissemination of materials through the Internet, as well as 
the increased number of worldwide newspapers and periodicals, has 
compounded the threat of libel tourism.
  This problem is well documented. Two years ago, the United Nations' 
Human Rights Committee observed that one country's libel laws 
``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.''
  Several States, to their credit, have enacted legislation to combat 
this problem, but we need a national response. While we can't legislate 
changes to foreign laws that are chilling protected speech in our 
country, what we can do to uphold the right of free speech in our own 
country is assure that our courts do not become a tool to uphold 
foreign libel judgments that undermine American first amendment or due 
process rights. The SPEECH Act is an important step toward reducing 
this chilling of American free speech
  The SPEECH Act is an important step toward reducing this chilling of 
American free speech. Americans have a great gift in their right of 
free speech. Every single Senator, Republican and Democratic, should 
join, as we have in this case, to protect America's rights.
  The SPEECH Act is the product of hard work and extensive negotiations 
on both sides of the aisle, and the process is certainly mindful about 
principles of international comity. Many supporters would not have 
written this bill in this exact way, but all recognize that a 
bipartisan compromise is an important step in confronting the libel 
tourism issue. Without it, we could not pass this bill.
  Among the supporters are the Vermont Library Association, former 
Attorney General Michael Mukasey, the former Director of the Central 
Intelligence Agency, James Woolsey, the American Library Association, 
the Association of American Publishers, the Reporters Committee for 
Freedom of the Press, the American Civil Liberties Union, Net 
Coalition, and renowned first amendment lawyer, Floyd Abrams.
  I would also like to recognize Dr. Rachel Ehrenfeld, Director of the 
American Center for Democracy, who herself has been the victim of a 
libel suit in the United Kingdom, and has been a tremendous advocate 
for Congressional action in this area.
  I wish to thank Senators Specter, Schumer, and Lieberman for their 
work in raising this important issue in the Senate and Representative 
Cohen for his hard work on libel tourism legislation in the other body. 
I am pleased the Senate has adopted this bipartisan legislation. I look 
forward to its prompt consideration and adoption by the House and to 
the President signing it into law.
  Mr. President, I do not see anybody else seeking recognition, so I 
will suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.

                          ____________________