[Congressional Record Volume 156, Number 111 (Tuesday, July 27, 2010)]
[House]
[Pages H6126-H6129]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SECURING THE PROTECTION OF OUR ENDURING AND ESTABLISHED CONSTITUTIONAL
HERITAGE ACT
Mr. COHEN. Mr. Speaker, I move to suspend the rules and concur in the
Senate amendment to the 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.
The Clerk read the title of the bill.
The text of the Senate amendment is as follows:
Senate amendment:
Strike out all after the enacting clause and insert:
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.
``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.
[[Page H6127]]
``(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.''.....
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Tennessee (Mr. Cohen) and the gentleman from Florida (Mr. Rooney) each
will control 20 minutes.
The Chair recognizes the gentleman from Tennessee.
General Leave
Mr. COHEN. I ask unanimous consent that all Members have 5
legislative days to revise and extend their remarks and include
extraneous material on the bill under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Tennessee?
There was no objection.
Mr. COHEN. Mr. Speaker, I yield myself such time as I may consume.
Earlier this Congress, I introduced, together with Congressman
Darrell Issa, H.R. 2765, to protect Americans' First Amendment rights
against the threat posed by libel tourism, a new term in our
vocabulary. The House passed that bill by voice vote under suspension
of the rules. The 110th Congress had also passed that bill in this
House as well.
Last week, the Senate passed, by unanimous consent, an amended
version of H.R. 2765, named the Securing the Protection of our Enduring
and Established Constitutional Heritage Act, or SPEECH. We consider the
Senate version today.
Libel tourism is the name given to the practice of doing an end-run
around the First Amendment by suing American authors and publishers for
defamation in the courts of certain foreign countries with defamation
laws that don't accord the same respect to free speech values as we do.
Britain is a nation that particularly is a situs for these actions.
While we generally share a proud common law legal tradition with the
United Kingdom, it is also true that the United Kingdom has laws that
disfavor speech critical of public officials and public figures,
contrary to our own constitutional tradition. As a result, the United
Kingdom has become the favorite destination for libel tourists.
British defamation laws lack the constitutionally mandated speech-
protective elements of U.S. law. For example, in contrast to U.S. law,
British law presumes the defendant is wrong and places the burden on
the defendant to prove the truth of her allegedly defamatory statement.
This feature of British law has brought condemnation, not only from
American defenders of free speech, but also from the United Nations,
and even from some members of the British Parliament.
In addition to Britain's substantive defamation law, features of
Britain's procedural law tend to facilitate libel tourism, especially
when it comes to the exercise of personal jurisdiction over a
defamation defendant.
Under their more expansive standard, British courts have been quick
to take jurisdiction over an American defendant whose book, magazine or
newspaper, though principally, or even exclusively, distributed in the
United
[[Page H6128]]
States, reaches even just a handful of readers in the United Kingdom,
or whose Internet site, though based in the United States, is visited
by someone in the UK.
Particular concerns have been raised that, as a result of British
courts' expansive exercise of jurisdiction in libel cases, the Internet
has rendered American authors and publishers especially vulnerable to
libel suits in Britain.
As one commentator has described the situation: ``In the Internet
age, the British libel laws can bite you no matter where you live.''
The Senate amendment to H.R. 2765 builds on the version of my bill
that passed the House earlier this Congress, maintaining its core
elements. Like the original bill, the Senate language prohibits U.S.
courts from recognizing or enforcing foreign defamation judgments that
are inconsistent with the First Amendment or do not comport with our
due process requirements.
The Senate language also continues to prohibit the enforcement of a
foreign defamation judgment against an interactive computer service if
the claim of the party opposing enforcement in the judgment is
inconsistent with section 230 of the Communications Act of 1934.
The purpose of this provision is to ensure that libel tourists do not
attempt to chill speech by suing a third-party interactive computer
service, rather than the actual author of the offending statement.
In such circumstances, the service provider would likely take down
the allegedly offending material rather than face a lawsuit. Providing
immunity removes this unhealthy incentive to take down material under
improper pressure.
The Senate language enhances an existing attorneys' fee provision so
that a court would now be required, absent exceptional circumstances,
to award attorneys' fees to the party resisting enforcement of the
foreign judgement if that party prevails. That provision was added in
committee this year to put more teeth in the bill.
The purpose of the provision is to dissuade libel tourists from
putting American authors and publishers through the burden and expense
of defending a meritless enforcement action and to compensate authors
and publishers when they are forced to do so.
The most significant change made by the Senate, which I support, is
the addition of a declaratory judgment remedy for a U.S.-based author
or publisher who is the target of a foreign defamation judgment.
This provision would allow the U.S.-based party against whom a
foreign defamation judgment is entered to seek a declaratory judgment
in Federal court, finding that the foreign judgment is repugnant to the
Constitution or laws of the United States under one of the grounds
listed in the bill.
The declaratory judgment remedy provides an added measure of
protection for the free speech rights of American authors and
publishers.
Last Thursday, The New York Times hailed the passage of this bill by
the Senate, where it was sponsored by Senator Leahy, as a great move
forward for First Amendment rights that are so important to our
American way of life.
I thank Judiciary Committee Chairman John Conyers, Ranking Member
Lamar Smith, the members of the Judiciary Committee, and the cosponsors
of this bill for their support.
And I greatly thank Senators Patrick Leahy, Jeff Sessions and Arlen
Specter for their longstanding and committed leadership on this issue.
And I should say particularly, Senator Leahy, such a gentleman, in
moving this bill forward.
I urge my colleagues to support this legislation.
[From The New York Times, July 22, 2010]
A Victory for Writing
It is a rare achievement these days for the Senate to pass
anything of real substance by a unanimous vote. But an
important bill that protects Americans from the whims of
foreign libel judgments was passed earlier this week by
unanimous consent. Once it passes the House and is signed
into law, it will provide a safeguard to authors and
publishers threatened with ruinous foreign judgments.
In the United States, a plaintiff alleging libel must prove
that a statement is false and defamatory, and public figures
have to show that a writer acted with actual malice in making
a false statement. But these protections, rooted in the First
Amendment, do not exist in places like Britain, Australia and
Singapore, where the burden is often on the author, once
accused of libel, to show that a statement is true.
To sidestep American protections, subjects of books have
sued publishers and authors in British courts where they have
a better chance of winning. The practice, known as libel
tourism, counts on a system in which American courts will
enforce British fines and penalties.
The bill passed by the Senate on Monday would prohibit
American courts from enforcing foreign defamation judgments
if the judgments are inconsistent with First Amendment
protections. In other words, if a British court finds that an
American author has committed libel but has not conducted the
trial with the same legal standards as an American court, the
judgment against the author would be void in the United
States. Americans who are found overseas to have committed
libel can also sue in federal court to have that judgment
found to be ``repugnant to the Constitution'' or American
law.
These kinds of cases have come up far too often. One of the
best known examples was that of Rachel Ehrenfeld, who wrote a
2003 book called ``Funding Evil: How Terrorism Is Financed--
and How to Stop It,'' that accused a Saudi businessman,
Khalid bin Mahfouz, of providing financial support to Al
Qaeda before the Sept. 11, 2001, attacks. After Mr. Mahfouz
sued for libel in Britain--a charge that Ms. Ehrenfeld
refused to defend--a British judge ordered her to pay K10,000
each to Mr. Mahfouz and his two sons, and more than K100,000
in legal costs, a total equaling about $230,000 at the time.
She refused to pay, and the case led the New York State
Legislature to pass a bill similar to the Speech Act in 2008.
The House has already passed a similar bill and is expected
shortly to support the version approved by the Senate, giving
authors in the rest of the country the same protections that
exist in New York. The next step is for the new British
government to take the hint and follow through on the promise
it made earlier this month to review and overhaul its libel
laws. No one in either country wins if writers cannot express
themselves freely.
I reserve the balance of my time.
Mr. ROONEY. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, Thomas Jefferson observed that ``the only security of
all is in a free press. The agitation it produces must be submitted to.
It is necessary to keep the waters pure.''
It's safe to say that Jefferson would not take kindly to libel
tourists, the subject of H.R. 2765.
In the wake of 9/11, the American media has become increasingly
alarmed over a phenomenon called libel tourism. Libel tourism is the
practice of suing for libel in a country with weaker free speech
protections than the United States. Surprisingly, most of these suits
are filed in Great Britain as its libel and slander laws provide great
writers and journalists less protection than those here in the United
States system.
So how do courts handle foreign judgments that clash with the
American legal values?
A foreign ruling will not be enforced in a U.S. course if the ruling
offends State public policy or the Constitution.
The House version of H.R. 2765, which we passed unanimously in June
2009, contains three major provisions. First, it states that a U.S.
court, either State or Federal, shall not enforce a foreign judgment
for defamation if the judgment is inconsistent with the First
Amendment.
Second, it clarifies that a foreign ruling denying an American
citizen due process guarantees will also not be enforced.
And, third, H.R. 2765 prevents enforcement of foreign rulings that
conflict with the U.S. telecommunications law that protects consumers'
rights to criticize corporate misconduct on Internet bulletin boards.
{time} 1830
This version, as amended by the Senate, includes essential provisions
to help deter libel tourists from bringing these suits in the first
place. Among these is a feature that allows a U.S. citizen who loses a
foreign suit to bring a declaratory action in Federal court to
determine whether the foreign verdict is ``repugnant to the
Constitution or the laws of the United States.''
Mr. Speaker, this bipartisan legislation provides appropriate and
necessary protection for U.S. journalists and authors and represents
the strongest policy response to libel tourism. The issue has been
thoroughly considered by the House Judiciary Committee. I urge the
Members to support H.R. 2765 as amended by the other body.
I reserve the balance of my time.
[[Page H6129]]
Mr. COHEN. Mr. Speaker, I yield myself such time as I may consume.
I just want to reflect on the fact that this bill probably couldn't
have gotten as far as it had without the outstanding work of the
gentleman from Massachusetts (Mr. Delahunt). The gentleman from
Massachusetts has been an invaluable member of the Judiciary Committee
for many years, contributed much to First Amendment rights, and
participated as the vice chairman of the Commercial and Administrative
Law subcommittee this year, an invaluable role that he actively engaged
in.
On this bill in particular, he was very instrumental in its passage.
I thank him for his service on this particular bill and in general. All
the publishers and the authors also should know that the gentleman from
Massachusetts was very involved in this bill.
With that, I would like to reserve the balance of my time for the
purpose of closing.
Mr. ROONEY. Mr. Speaker, I yield back the balance of my time.
Mr. COHEN. Mr. Speaker, it is with great pleasure that this bill
comes to a conclusion. We passed this in the 110th Congress, we
couldn't get the Senate to agree on the language, and we did it in this
Congress. It was a victory for writing, said the New York Times, a rare
achievement for the Senate to pass this particular bill by a unanimous
vote. It was an important bill that protects Americans from the whims
of foreign libel judgments. This bill will safeguard authors and
publishers threatened with ruinous foreign judgments. These particular
First Amendment rights have been jeopardized in places like Britain,
Australia and Singapore where the burden was shifted.
So it is important, as the New York Times suggested in what is an
outstanding editorial endorsing and praising the passage of this bill,
mentioning Ms. Rachel Ehrenfeld who wrote a 2003 book ``Funding Evil:
How Terrorism is Financed--and How to Stop It,'' where she was the
object of a libel tourism action by an individual that got a judgment
against her which was improper. She has been a very active and
important citizen in seeing that this bill was passed along with the
publishers over the years.
It's important that we pass this. The New York Times editorial was so
complete, it only failed to mention Mr. Delahunt's role in the passage
of the bill. I wish it would have. With that, I would ask for the
unanimous passage of the bill.
I yield back the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Tennessee (Mr. Cohen) that the House suspend the rules
and concur in the Senate amendment to the bill, H.R. 2765.
The question was taken; and (two-thirds being in the affirmative) the
rules were suspended and the Senate amendment was concurred in.
A motion to reconsider was laid on the table.
____________________