[Congressional Record (Bound Edition), Volume 154 (2008), Part 16]
[House]
[Pages 22810-22815]
[From the U.S. Government Publishing Office, www.gpo.gov]




PROHIBITING RECOGNITION AND ENFORCEMENT OF FOREIGN DEFAMATION JUDGMENTS

  Mr. CONYERS. Mr. Speaker, I move to suspend the rules and pass the 
bill (H.R. 6146) to amend title 28, United States Code, to prohibit 
recognition and enforcement of foreign defamation judgments, as 
amended.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 6146

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. FINDINGS; PURPOSE.

       (a) Findings.--Congress finds the following:
       (1) The first amendment of the Constitution of the United 
     States prohibits the abridgment of freedom of speech.
       (2) Freedom of speech is fundamental to the values of 
     American democracy.
       (3) In light of the constitutional protection our Nation 
     affords to freedom of speech, the Supreme Court has modified 
     the elements of the common law tort of defamation to provide 
     more protection for defendants than would be available at 
     common law, including providing special protections for 
     political speech.
       (4) The courts of other countries, including those that 
     otherwise share our Nation's common law and due process 
     traditions, are not constrained by the first amendment and 
     thus may provide less protection to defamation defendants 
     than our Constitution requires.
       (5) While our Nation's courts will generally enforce 
     foreign judgments as a matter of comity, comity does not 
     require that courts enforce foreign judgments that are 
     repugnant to our Nation's fundamental constitutional values, 
     in particular its strong protection of the right to freedom 
     of speech.
       (6) Our Nation's courts should only enforce foreign 
     judgments as a matter of comity when such foreign judgments 
     are consistent with the right to freedom of speech.
       (b) Purpose.--The purpose of this Act is to protect the 
     right to freedom of speech under the first amendment to the 
     Constitution of the United States from the potentially 
     weakening effects of foreign judgments concerning defamation.

     SEC. 2. 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. Recognition of foreign defamation judgments.

     ``Sec. 4101. Recognition of foreign defamation judgments

       ``(a) First Amendment Considerations.--Notwithstanding any 
     other provision of Federal or State law, a domestic court 
     shall not recognize or enforce a foreign judgment for 
     defamation that is based upon a publication concerning a 
     public figure or a matter of public concern unless the 
     domestic court determines that the foreign judgment is 
     consistent with the first amendment to the Constitution of 
     the United States.
       ``(b) Definitions.--For purposes of this section:
       ``(1) Domestic court.--The term `domestic court' means a 
     State court or a Federal court.
       ``(2) Foreign court.--The term `foreign court' means a 
     court, administrative body, or other tribunal of a foreign 
     country.
       ``(3) Foreign judgment.--The term `foreign judgment' means 
     a final judgment rendered by a foreign court.''.
       (b) Clerical 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 
Michigan (Mr. Conyers) and the gentleman from Texas (Mr. Smith) each 
will control 20 minutes.
  The Chair recognizes the gentleman from Michigan.


                             General Leave

  Mr. CONYERS. Mr. Speaker, 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 Michigan?
  There was no objection.
  Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, this bill imposes a limited, but important, condition on 
enforcement of foreign defamation judgments in our courts.
  It prohibits a federal or state court from enforcing a defamation 
judgment entered in another country for publication involving a matter 
of public concern, unless the court first determines that the judgment 
is consistent with the free-speech clause of our Constitution's First 
Amendment.
  H.R. 6146 responds to the problem of what is sometimes called ``libel 
tourism.'' This is the disturbing practice of suing authors for 
defamation in foreign countries rather than in the United States, so as 
to avoid the speech-protective features of defamation law enshrined in 
our Constitution.
  A much-cited recent example is the lawsuit filed by a Saudi 
billionaire against an American expert on terrorism, as a result of 
statements about his activities she made in a book entitled Funding 
Evil: How Terrorism Is Financed and How to Stop It.
  The Saudi billionaire sued the American author not in the United 
States, where the book was published, but in England, where a mere 23 
copies of the book had been sold to on-line buyers.
  He sued in England to avail himself of English libel law, which 
denies authors the important free-speech protections of our First 
Amendment. This kind of end-run on the Constitution poses an obvious 
threat to free speech rights in our country.
  H.R. 6146, which was introduced by our colleague, Steve Cohen of 
Tennessee, would go a long way toward eliminating this threat. At the 
same time, it would not interfere with the judicial systems of other 
countries, or deprive plaintiffs of their choice of forum.
  It would simply require that anyone who seeks to enforce this 
specific type of defamation judgment in our courts to establish that 
the judgment does not offend our First Amendment. Many U.S. courts 
already impose this condition on the enforcement of foreign defamation 
judgments.
  I urge my colleagues to support this important bill.
  Mr. Speaker, I yield to the author of the measure, Steve Cohen, the 
gentleman from Memphis, Tennessee, as much time as he may consume.
  Mr. COHEN. I want to thank the chairman for his courtesies and the 
ranking member in helping bring this bill to the floor today.
  Mr. Speaker, I rise today in support of H.R. 6146, which I introduced 
with Congressman Issa of California. The bill is designed to address 
the phenomenon of libel tourism, whereby plaintiffs seek judgments from 
foreign courts from American authors and publishers for making 
allegedly defamatory statements.
  The fact is, these statements in these cases would not be considered 
defamatory in American courts where the first

[[Page 22811]]

amendment gives our authors and people the protection of the first 
amendment, but in certain jurisdictions, even countries that have 
similar legal systems to ours, the first amendment is not recognized, 
and the libel laws are much different, and plaintiffs have less burdens 
to prove to get judgments against defendants.
  This threatens to undermine our Nation's core free speech principles, 
as embodied in the first amendment. U.S. law places this higher burden 
on defamation plaintiffs to safeguard our first amendment and protect 
our speech. We have seen problems with this, particularly in courts of 
England. The State of New York has already acted to pass a bill to 
protect authors and publishers in the first amendment, but there was a 
need to have such on a national basis.
  Thomas Jefferson is memorialized with the monument here in 
Washington. My friend, Randy Wade, and I visited Thomas Jefferson 
recently. Around the top of the monument is a statement Thomas 
Jefferson is known for:
  ``I have sworn upon the altar of almighty God eternal hostility 
against every form of tyranny over the minds of men.'' To infringe on 
the opportunity for people to write books and publish, which is what 
this does, is tyranny over the minds of men. I believe Jefferson would 
join with us today in support of this proposal.
  H.R. 6146 will codify the principle that while U.S. courts will 
normally enforce judgments of foreign courts, they should not do so 
when the foreign judgments undermine our Constitution, particularly our 
precious first amendment.
  Specifically, our bill prohibits U.S. courts from recognizing and 
enforcing foreign defamation judgments that do not comport with the 
first amendment. I believe that passage of this bill will dissuade 
those who would seek to circumvent our first amendment by filing 
actions in libel-friendly forums that do not share our protections and 
then threaten our authors with judgments.
  I thank, again, Chairman Conyers and Ranking Member Smith for their 
assistance in bringing this bill to the floor on suspension. I also 
thank Congressman Issa for his help and Congressman Peter King.
  Representative King had a different bill on the same subject. He has 
shown leadership on this issue for his home State of New York, and he 
joined with us in this particular bill to try to get it passed here in 
this Congress.
  Adam Cohen, no relation to me in any way whatsoever, opined in The 
New York Times that this bill needed to become law immediately. We did 
go into warp speed to get this to the floor.

                              {time}  1830

  I am committed to working with Mr. King next year. I have talked to 
Chairman Conyers, and he is in agreement that we should have a public 
hearing next year on this legislation with Mr. King's ideas that go 
further than this bill to discuss how far libel tourism should go. And 
that hearing I think would satisfy Senator Specter's office and others 
on the Senate side, to go deeper to protect our authors and the freedom 
of speech.
  I would also like to thank the Association of American Publishers, 
particularly former Congresswoman Pat Schroeder, the Media Law Resource 
Center, and Professor Michael Brode of Emory University Law School for 
their input on the bill.
  I urge the bill's immediate passage. I thank my chairman from the 
bottom of my heart who I am fortunate to serve with, and my ranking 
member who has been so kind to me during my first term.
  Mr. SMITH of Texas. First of all, I support this legislation and I 
thank the gentleman from Tennessee (Mr. Cohen) for his persistent 
efforts in promoting this legislation.
  I yield 3 minutes to my colleague, the gentleman from Texas (Mr. 
Poe).
  Mr. POE. Mr. Speaker, I thank Mr. Conyers for pushing this 
legislation and the gentleman from Tennessee (Mr. Cohen) for sponsoring 
this legislation. I am proud to be a cosponsor of this legislation.
  Mr. Speaker, there is a legal presumption in most countries, even 
Third World countries, that if you accuse somebody of something, you 
have to prove it, whether civil or criminal. The burden of proof is on 
the accuser. But that is not so in all countries when it comes to libel 
and slander.
  Take Great Britain, for example. It goes back to when the King ruled 
the day. If you criticized the King, even if you were right, off with 
your head. One of the reasons that we formed our own country was the 
idea of freedom of speech and freedom of press and that is why we put 
those two fundamental principles first in our Constitution. I have a 
pocket Constitution that most Members of Congress carry with them, and 
the first amendment protects the right of a free press and freedom of 
speech.
  What has occurred, though, throughout the courts in Great Britain in 
a libel case, in other words somebody writes something about somebody 
else, if the person that is the subject matter doesn't like it, they 
file a lawsuit in Great Britain, and the burden is on the person who 
wrote the document to prove it is true. The burden is not on the 
accuser like it would be in the United States. That applies not only in 
libel cases but slander cases. And it has taken place especially in 
books about Islamic terrorism throughout the world.
  Writers critical of Islamic terrorists are being sued by wealthy 
sheiks and Saudi billionaires, specifically Khalid bin Manfouz, who was 
accused in ``Alms for Jihad'' of financing Islamic terrorists through 
Muslim charities. What he did, he got mad about the Cambridge 
University Press, and he threatened to sue Cambridge University Press. 
What happened in England, which I hope never happens with our press, 
they got so nervous about it that they started taking all of the books 
off the shelves, and they started destroying the books. In fact, they 
sent word throughout the world, if you have this book, ``Alms For 
Jihad,'' destroy the book. Kind of like the burning of books during 
World War II under the Nazis. So the Cambridge University Press gave in 
because the libel laws are different than they are in the United 
States.
  It has also occurred here in the United States with a similar book 
called, ``Funding Evil,'' written by Rachel Ehrenfeld. What she did was 
write a book in the United States, published in the United States. But 
some books, 23, worked their way to England. Here we go again. This 
author was sued in the courts of England and had the burden of proof to 
prove that her statements were true. Well, she filed suit against the 
people who sued her, once again bin Manfouz, and that lawsuit is now 
pending in our courts.
  The SPEAKER pro tempore. The gentleman's time has expired.
  Mr. SMITH of Texas. I yield 1 additional minute.
  Mr. POE. So our courts are hearing this matter and it is all about 
the freedom of speech and the freedom of press. That is a human right. 
That is a universal right in this world, whether the courts in Great 
Britain recognize it or not. And it is important that people be free to 
write the truth and not suffer the consequences from it and certainly 
not have to prove what they say is true just because somebody objects.
  This legislation is good to protect the publishers and writers in the 
United States that if they are sued in foreign courts, that those 
judgments will not be upheld unless that law, that judgment would be 
upheld in courts in the United States.
  This is important legislation. I would like to put into the Record an 
article from the San Francisco Chronicle talking about this entire 
concept of libel tourism.

           [From the San Francisco Chronicle, Aug. 29, 2008]

           Libel Tourism: Where Terrorism and Censorship Meet

                        (By Cinnamon Stillwell)

       It has become popular for those with competing political 
     agendas to allege threats to free speech, whether real or 
     imagined. Yet, there is a very real threat to free speech 
     that has received little attention in the public sphere. It's 
     called libel tourism and it has become a major component in 
     the ideological arm of the war on terrorism.
       At question is the publication of books and other writings 
     that seek to shed light on the

[[Page 22812]]

     financing of Islamic terrorism. Increasingly, American 
     authors who dare enter this territory are finding themselves 
     at risk of being sued for libel in the much more plaintiff-
     friendly British court system in what amounts to an attempt 
     to censor their work on an international level.
       The latest case of libel tourism to rear its ugly head 
     involves the book ``Alms for Jihad,'', which was published by 
     Cambridge University Press in 2006. Co-written by former 
     State Department analyst and USAID relief coordinator for 
     Sudan J. Millard Burr and UC Santa Barbara professor emeritus 
     of history Robert O. Collins, ``Alms for Jihad'' delves into 
     the tangled web of international terrorist financing and, 
     chiefly, the misuse of Muslim charities for such purposes.
       Among those the book fingers for involvement is Saudi 
     billionaire Khalid bin Mahfouz, the former chairman of Saudi 
     Arabia's largest bank, National Commercial Bank. Bin Mahfouz 
     has come under similar scrutiny on previous occasions, 
     including being named a defendant in a lawsuit filed by 
     family members of victims of the Sept. 11 terrorist attacks. 
     He even has a section of his Web site devoted to trying to 
     refute such charges.
       With this in mind, Cambridge University Press lawyers 
     looked over the manuscript for ``Alms for Jihad'' carefully 
     before giving it the go-ahead. According to Collins, the 
     passages involving bin Mahfouz are, in fact, quite 
     ``trivial'' compared to the wealth of information contained 
     in the book on how such funds are used to finance conflicts 
     around the globe.
       Yet, it is bin Mahfouz's inclusion in ``Alms for Jihad'' 
     that has proven to be the most problematic, for he soon 
     threatened Cambridge University Press with a libel lawsuit. 
     Before the suit could commence, Cambridge University Press 
     capitulated and announced in July that not only was it taking 
     the unprecedented step of pulping all unsold copies of ``Alms 
     for Jihad,'' but it was asking libraries all over the world 
     to remove the book from their shelves. Cambridge University 
     Press issued a formal apology to bin Mahfouz and posted a 
     public apology at its Web site. It also agreed to pay his 
     legal costs and unspecified damages, which, according to bin 
     Mahfouz, are to be donated to UNICEF.
       Authors Burr and Collins, however, did not take part in the 
     apology, nor were they a party to the settlement, and they 
     continue to stand by their scholarship. As Collins put it, 
     ``I'm not going to recant on something just from the threat 
     of a billionaire Saudi sheik . . . I think I'm a damn good 
     historian.'' The authors were aware that Cambridge University 
     Press's decision was based not so much on a lack of 
     confidence in the book as on a fear of incurring costly legal 
     expenses and getting involved in a lengthy trial. The British 
     court system is known as a welcoming environment for ``libel 
     tourists'' such as bin Mahfouz. The Weekly Standard 
     elaborates: ``Bin Mahfouz has a habit of using the English 
     tort regime to squelch any unwanted discussion of his record. 
     In America, the burden of proof in a libel suit lies with the 
     plaintiff. In Britain, it lies with the defendant, which can 
     make it terribly difficult and expensive to ward off a 
     defamation charge, even if the balance of evidence supports 
     the defendant.''
       Bin Mahfouz has indeed availed himself of the British court 
     system on many occasions, having either sued or threatened 
     suit against Americans and others at least 36 times since 
     2002, according to Rachel Ehrenfeld, author and director of 
     the American Center for Democracy.
       Ehrenfeld should know, as her own book, ``Funding Evil: How 
     Terrorism is Financed--And How to Stop It,'' was also 
     targeted by bin Mahfouz through the British court system. Bin 
     Mahfouz sued Ehrenfeld for libel in 2004, soon after her 
     book's publication in the United States, even though only 23 
     copies ever made it to the United Kingdom.
       Ehrenfeld would not, as she put it in the New York Post, 
     ``acknowledge a British court's jurisdiction over a book 
     published here'' and a trial was never held, but the court 
     ruled in favor of bin Mahfouz by default. It also awarded bin 
     Mahfouz $225,913 in damages and ordered Ehrenfeld to 
     apologize publicly and to destroy all unsold copies of the 
     book.
       Instead, Ehrenfeld chose to fight back. No doubt aware of 
     the larger implications at work, she took her case to the 
     United States and, giving bin Mahfouz a taste of his own 
     medicine, sued him in a New York federal court on the basis 
     that ``his English default judgment is unenforceable in the 
     United States and repugnant to the First Amendment.''
       Civil-liberties lawyer Harvey Silverglate has described her 
     case as ``one of the most important First Amendment cases in 
     the past 25 years'' and sure enough, in June of this year, 
     the Second Circuit Court of Appeals agreed that it deserved a 
     hearing. The court will begin hearing arguments this fall in 
     what could turn out to be a pivotal case involving the clash 
     between First Amendment rights and foreign libel rulings.
       Ehrenfeld may indeed have a strong case. She maintains that 
     bin Mahfouz has a long history of involvement in terrorist 
     financing. The bulk of it, she wrote in 2005, revolves around 
     the now-defunct Muwafaq (Blessed Relief) Foundation, which 
     was founded by bin Mahfouz and ``identified by the U.S. 
     Treasury Department as providing logistical and financial 
     support to al Qaeda, HAMAS, and the Abu Sayyaf 
     organizations.'' Ehrenfeld recapped her concerns more 
     recently: ``The data in both Alms for Jihad and Funding Evil 
     is all well-documented by the media and the U.S. Congress, 
     courts, Treasury Department and other official statements. 
     Further corroboration comes from French intelligence 
     officials at the General Directorate of External Security 
     (DGSE), as reported in the French daily, Le Monde. For 
     example, the DGSE reported that, in 1998, it knew bin Mahfouz 
     to be an architect of the banking scheme built to benefit 
     Osama bin Laden, and that both U.S. and British intelligence 
     services knew it, too.''
       For this reason, and also to create a precedent, Ehrenfeld 
     has been the only defendant so far not to settle with bin 
     Mahfouz. And she refuses to ``acknowledge the British Court 
     and its ruling'' to this day.
       Ehrenfeld's success thus far countering bin Mahfouz mirrors 
     other indications that libel tourism may be backfiring. The 
     largely Internet-based furor over the attempt to squelch 
     ``Alms for Jihad'' and what is widely seen as Cambridge 
     University Press' cave-in has caused the book's price to 
     skyrocket. A copy of the book sold on eBay this month for 
     $538. As noted at the blog Hot Air, ``By suing publisher 
     Cambridge University Press into submission, Khalid bin 
     Mahfouz has turned an obscure scholarly book on the financial 
     workings of terrorism into a prized, rare book.''
       In addition, the American Library Association is rising to 
     the occasion. Rather than going along with the Cambridge 
     University Press settlement stipulation that American 
     libraries remove ``Alms for Jihad'' from their shelves, the 
     American Library Association's Office for Intellectual 
     Freedom issued the following statement earlier this month: 
     ``Unless there is an order from a U.S. court, the British 
     settlement is unenforceable in the United States, and 
     libraries are under no legal obligation to return or destroy 
     the book. Libraries are considered to hold title to the 
     individual copy or copies, and it is the library's property 
     to do with as it pleases. Given the intense interest in the 
     book, and the desire of readers to learn about the 
     controversy first hand, we recommend that U.S. libraries keep 
     the book available for their users.''
       Reportedly, Collins and Burr got the publishing rights to 
     the book back from Cambridge University Press and, according 
     to the Library Journal, have had ``several offers from U.S. 
     publishers.'' It appears the ``Alms for Jihad'' saga is far 
     from over and free speech may yet win the day.
       In another victory for free speech, as well as an 
     instructive example of what such libel suits look like when 
     attempted in the United States, a recent case involving Yale 
     University Press proves useful. It involved a book written by 
     Matthew Levitt, the director of the Stein Program on 
     Terrorism, Intelligence and Policy at the Washington 
     Institute for Near East Policy, titled ``Hamas: Politics, 
     Charity, and Terrorism in the Service of Jihad.''
       In his book, Levitt disputes the notion, popular among 
     Hamas apologists, that the group's terrorist and social 
     service pursuits can be seen as separate. In the process, he 
     implicates the Dallas charity KinderUSA, which allegedly 
     raises funds for Palestinian children, in terrorist 
     financing. The group has personnel connections to the now-
     closed Holy Land Foundation for Relief and Development, which 
     has been under investigation by federal authorities for 
     funding Hamas. KinderUSA has also come under investigation 
     and as a result, in 2005 suspended operations temporarily.
       All of this information is available to the public and the 
     book was thoroughly fact-checked prior to publication. 
     Levitt, who is a witness in the ongoing trial of the Holy 
     Land Foundation, explained further that he ``conducted three 
     years of careful research for Hamas, and the book was the 
     subject of academic peer review.''
       But this didn't stop KinderUSA and the chair of its board, 
     Dr. Laila AI-Marayati, from filing a libel suit in California 
     in April against Levitt, Yale University Press, and the 
     Washington Institute for Near East Policy. They disputed a 
     particular passage from the book, as well as alleging that 
     Yale University Press did not subject it to fact-checking. 
     But, in filing the suit in California, they were faced with a 
     formidable challenge: the state's anti-SLAPP statute. 
     According to Inside Higher Education: ``KinderUSA asked the 
     court for an injunction on its request that distribution of 
     the book be halted, and also sought $500,000 in damages. But 
     in July, Yale raised the stakes by filing what is known as an 
     ``anti-SLAPP suit'' motion, seeking to quash the libel suit 
     and to receive legal fees. SLAPP is an acronym for 
     ``strategic lawsuit against public participation,'' a 
     category of lawsuit viewed as an attempt not to win in court, 
     but to harass a nonprofit group or publication that is 
     raising issues of public concern. The fear of those sued is 
     that groups with more money can tie them up in court in ways 
     that would discourage them from exercising their

[[Page 22813]]

     rights to free speech. Anti-SLAPP statutes, such as the one 
     in California with which Yale responded, are tools created in 
     some states to counter such suits.''
       Not only did Yale University Press stand by its author, 
     but, in the end, its aggressive response to KinderUSA paid 
     off. It was announced this month that the libel suit has been 
     dropped and no changes to the book or payments to the 
     plaintiffs will be forthcoming. KinderUSA claims that it 
     dropped the suit because of the costs involved, but it's more 
     likely it felt that it could not win. If the case had been 
     brought in the United Kingdom, the outcome could have been 
     far different.
       This is why Americans must be vigilant about protecting 
     their free speech rights, even when the threats at hand do 
     not fit into the politically correct playbook. Certainly not 
     all Muslim charities and Saudi businessmen are involved in 
     financing terrorism, but the overwhelming amount of evidence 
     pointing to existing links deserves attention, as do the 
     fervent attempts by interested parties to silence those 
     trying to bring the truth to light. It is crucial that they 
     not succeed.

  Mr. CONYERS. Mr. Speaker, I yield back the balance of my time.
  Mr. SMITH of Texas. Mr. Speaker, my Texas colleague described the 
merits of this legislation so well, I will simply make my prepared 
statement a part of the Record.
  Mr. Speaker, in the wake of 9-11, the American media has become 
increasingly alarmed over a phenomenon called ``libel tourism.'' The 
term refers to the subject of a critical news story suing the American 
author or reporter of the story in a plaintiff-friendly overseas forum.
  This mostly occurs in the United Kingdom, since English libel and 
slander laws offer less protection to journalists compared to the U.S. 
system that features the protection offered by the First Amendment.
  Persons identified in news stories as terrorists or terrorist 
sympathizers have brought some of the higher-profile suits. In fact, 
H.R. 6146 is a legislative response to a New York case in which a Saudi 
billionaire sued an American author in the UK for defamation, based on 
the author's allegations that he had subsidized terrorist activities.
  What is the legal hook that allowed a British court to claim 
jurisdiction over the case? Twenty-three copies of the author's book 
detailing the billionaire's activities were purchased online in Great 
Britain.
  The reporter chose not to appear before the court, which subsequently 
found her liable and ordered her to pay $225,000 in damages, apologize 
to the plaintiff, and destroy any remaining copies of the offending 
book.
  Such a result is doubly troublesome. First, an author must worry 
about satisfying a judgment that would bankrupt most Americans. And 
second, an author must contend with the fall-out of being shunned by 
the publishing community.
  This is not an imagined result. It is a real threat to anyone wishing 
to earn a living by reporting and commenting on controversial subjects. 
And it's an outcome incompatible with our constitutional history and 
its commitment to the free-flow of ideas and to the robust debate 
contemplated by the First Amendment.
  H.R. 6146 combats libel tourism by proscribing enforcement of any 
foreign defamation case if it is not ``consistent with the First 
Amendment . . . .'' This proposal tracks U.S. case law, which holds 
that a foreign judgment will not be enforced in an American court if 
the foreign judgment is offensive to State or Federal law.
  H.R. 6146 does not overreach. It constitutes a straightforward and 
sensible response to the practical legal problems caused by libel 
tourism by codifying a principle already reflected in U.S. law.
  Mr. Speaker, I commend the primary authors of the bill, my colleagues 
on the Judiciary Committee, Representatives Steve Cohen and Darrell 
Issa, for their hard work and persistence in addressing this important 
subject.
  I also want to acknowledge our colleague, Representative Peter King, 
the Ranking Member of the Homeland Security Committee, for his work on 
the issue.
  I urge my colleagues to support H.R. 6146.
  Mr. UDALL of Colorado. Mr. Speaker, as a cosponsor of this bill, I 
rise to urge its approval by the House.
  The bill responds to as increasingly serious threat to freedom of 
speech--the phenomenon often called ``libel tourism.''
  That term is used to describe lawsuits brought in other countries--
especially the United Kingdom--by people claiming to have been defamed 
by publications that would not be considered defamatory in the United 
States.
  As explained in a recent news article about the practice--

       Britain is a legal refuge because of defamation standards 
     rooted in common law. They essentially assume that any 
     offending speech is false and the writer or author must prove 
     that it is in fact true to prevail against the charge. In the 
     United States, with its First Amendment protection for free 
     speech, the situation tilts in the opposite direction: To 
     succeed, libel plaintiffs must prove that the speech is false 
     and published with a reckless disregard for the truth.

  A notable example involves the case of Rachel Ehrenfeld, an Israeli-
born writer living in the United States and her legal battle with a 
billionaire Saudi entrepreneur, Khalid Salim bin Mahfouz over her 2003 
book on terrorist financing, ``Funding Evil,'' which asserted that Bin 
Mahfouz and his family provided financial support to Islamic terrorist 
groups. The book was not sold in the United Kingdom, but Mr. Bin 
Mahfouz's lawyers argued that more than 20 copies of her book had been 
purchased there online and that therefore the British courts had 
authority to hear his defamation complaint.
  Ms. Ehrenfeld did not respond and because she offered no defense, the 
judge ruled that she had to pay a judgment of $225,000, apologize for 
false allegations, and destroy existing copies of the book. Mr. Bin 
Mahfouz has not sought to collect on the judgment, but Ms. Ehrenfeld 
says it has affected her ability to publish further books. And last 
year Cambridge University Press agreed to destroy all copies of ``Arms 
for Jihad'' and to write to 100 libraries around the world seeking to 
add an explanatory sheet to archived books.
  Evidently Mr. Bin Mahfouz has filed more than 24 lawsuits against 
writers and authors, and his advisers have created a special Web site 
tracking the legal suits and apologies issued by writers and 
publishers.
  The bill now before the House responds to this threat to free speech. 
It would bar any U.S. court (State or Federal) from recognizing or 
enforcing a foreign defamation judgment unless it determined that the 
judgment ``is consistent with the First Amendment.'' Thus, someone who 
had won a defamation judgment abroad would have to prove the case under 
U.S. standards before it could be enforced here. This will provide 
important protection for Americans and others who exercise the First 
Amendment right of free speech in our country.
  I urge approval of the bill.
  Mr. KING of New York. Mr. Speaker, today I rise in support of H.R. 
6146, legislation that will prohibit the recognition and enforcement of 
foreign defamation judgments based upon a publication that concerns a 
public figure or a matter of public concern. This bill, like 
legislation (Free Speech Protection Act) that I introduced earlier this 
year attempts to deal with the issue of ``libel tourism'' that 
threatens not only Americans' First Amendment freedom of speech but 
also their ability to inform the general public about existential 
threats; namely, who are the terrorists and who are their supporters. 
As the Ranking Member on the House Committee on Homeland Security I am 
regularly briefed on dangers to the homeland and know how grave these 
threats are. We cannot allow foreigners the opportunity to muzzle 
Americans for speaking the truth about these dangers!
  Libel tourism is a recent phenomenon in which certain individuals are 
obstructing the free expression rights of Americans (and the vital 
interest of the American people) by seeking out foreign jurisdictions 
(``libel shopping'') that do not provide the full extent of free-speech 
protection that is enshrined in our First Amendment. Some of these 
actions are intended not only to suppress the free speech rights of 
journalists and others but also to intimidate publishers and other 
organizations from disseminating or supporting their work.
  Unlike in the United States where the burden of proof is on the 
plaintiff to show that the publication was not only false but also 
malicious, in countries such as the United Kingdom it is the reverse: 
The defendant is required to appear in court and prove what he has 
written was 100 percent factual. And some of the ``tourists'' claims of 
jurisdiction are tenuous at best. In many cases, not only are none of 
the individuals (author, litigant, or publisher) associated with the 
case living in the venue of jurisdiction, but neither are the books 
published there. These ``tourists'' stretch the law by claiming a 
handful of copies of the book were purchased over the internet in that 
country. The author must then hire an attorney, travel to the foreign 
country, and defend himself or likely face a default judgment against 
him. Consequences include (but are not limited to) fines, public 
apologies, pulping of books, and the removal of them from bookstores 
and libraries.
  We cannot change nor would we want to change other countries' (libel) 
laws. We must respect their rule of law as they ought to respect ours. 
However, we cannot allow foreign citizens to exploit these courts to 
shield personal reputations when it directly contradicts Americans' 
First Amendment protected

[[Page 22814]]

speech, especially when the subject matter is of such grave importance 
as terrorism and those who finance it. We rely on a variety of sources 
for intelligence and we cannot allow foreign litigants and foreign 
courts to tell us who can write and who can publish what. That is a 
dangerous path we do not want to follow.
  Furthermore, the governments and courts of some foreign countries 
have failed to curtail this practice, permitting lawsuits filed by 
persons who are often not citizens of those countries, under 
circumstances where there is often little or no basis for jurisdiction 
over the Americans against whom such suits are brought.
  Some of the plaintiffs bringing such suits are intentionally and 
strategically refraining from filing their suits in the United States, 
even though the speech at issue was published in the United States, to 
avoid the Supreme Court's First Amendment jurisprudence and frustrate 
the protections it affords Americans.
  But this issue is also very troubling for the authors, journalists, 
and even publishers who attempt to write on these subjects. Already we 
have seen examples of authors having difficulty getting their articles 
or books published because of publishing houses' fear of being sued 
overseas. Some companies have even gone as far as to pay large 
settlements to avoid having to go to court. So not only are authors 
being injured for the works they have previously written but they and 
their publishers are being intimidated from writing future works on 
these important topics. The free expression and publication by 
journalists, academics, commentators, experts, and others of the 
information they uncover and develop through research and study is 
essential to the formation of sound public policy and thus to the 
security of Americans.
  The Americans against whom such suits are brought must consequently 
endure the prohibitive expense, inconvenience, and anxiety attendant to 
being sued in foreign courts for conduct that is protected by the First 
Amendment, or decline to answer such suits and risk the entry of costly 
default judgments that may be executed in countries other than the 
United States where those individuals travel or own property.
  In turn, the American people are suffering concrete and profound harm 
because they, their representatives, and other government policy-makers 
rely on the free expression of information, ideas and opinions 
developed by responsible journalists, academics, commentators, experts, 
and others for the formulation of sound public policy, including 
national security policy.
  Having said that, the United States respects the sovereign right of 
other countries to enact their own laws regarding speech, and seeks 
only to protect the First Amendment rights of Americans in connection 
with speech that occurs, in whole or part, in the United States.
  That is why earlier this year I introduced the Free Speech Protection 
Act, H.R. 5814, to defend U.S. persons who are sued for defamation in 
foreign courts. This legislation allows U.S. persons to bring a Federal 
cause of action against any person bringing a foreign libel suit if the 
writing does not constitute defamation under U.S. law. It would also 
bar enforcement of foreign libel judgments and provide other 
appropriate injunctive relief by U.S. courts if a cause of action is 
established. H.R. 5814 would award damages to the U.S. person who 
brought the action in the amount of the foreign judgment, the costs 
related to the foreign lawsuit, and the harm caused due to the 
decreased opportunities to publish, conduct research, or generate 
funding. Furthermore, it would award treble damages if the person 
bringing the foreign lawsuit intentionally engaged in a scheme to 
suppress First Amendment rights. It allows for the expedited discovery 
if the court determines that the speech at issue in the foreign 
defamation action is protected by the First Amendment. Finally, nothing 
in this legislation would limit the rights of foreign litigants who 
bring good faith defamation actions to prevail against journalists and 
others who have failed to adhere to standards of professionalism by 
publishing false information maliciously or recklessly. The Free Speech 
Protection Act does, however, attempt to discourage those foreign libel 
suits that aim to intimidate, threaten, and restrict the freedom of 
speech of Americans. I am proud to have worked closely with Senators. 
Arlen Specter and Joe Lieberman who have introduced companion 
legislation in the Senate.
  I support the passage of H.R. 6146, a Federal version of New York 
State's ``Rachel's Law,'' which will provide protection to U.S. 
authors, journalists, and publishers against the domestic enforcement 
of defamation judgments from foreign countries with less free speech 
protections than the U.S. The protection of free speech enshrined in 
the First Amendment is one of America's most cherished rights, and it 
is unacceptable that First Amendment rights of Americans can be 
potentially undermined or restricted by foreign court judgments based 
on lower free speech standards.
  The impetus for a Federal ``Rachel's Law'' is the case of Dr. Rachel 
Ehrenfeld, a U.S. citizen and Director of the American Center for 
Democracy. 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 Dr. Ehrenfeld for libel in England 
though 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. 
After the English court entered a judgment against Dr. Ehrenfeld, she 
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'', 
commonly known as ``Rachel's Law.''
  I support H.R. 6146 because it prohibits U.S. (domestic) courts from 
enforcing these outrageous defamation suits. We must stand up to the 
terrorists and their financers, supporters, and sympathizers. However, 
this bill does not go far enough nor does it resolve the problem of 
``libel tourism.'' Foreign litigants will still be allowed to file 
these libel suits overseas without the worry of being countersued here 
in the U.S. If this bill passes, they will never see a dime of those 
hefty judgments they were awarded, but that's not what they are after 
in the first place. They want the default judgment. They want the 
publicity. They want the apology. And they want these books to 
disappear. But most of all they want to intimidate. They want to make 
sure people are afraid of writing anything about them. And it's 
working. Journalists are even afraid of writing about this legislation! 
That's their goal here. Not to collect the money. Many of them are 
already wealthy, and if they really cared about collecting a monetary 
judgment they would file these suits in the U.S. in the first place. 
They choose not to, however, because they know they would never win in 
a U.S. court.
  Finally, I support H.R. 6146 because it is a first step in the right 
direction. I am a cosponsor of this bill and thank Representatives 
Steve Cohen and Darrell Issa for introducing it. H.R. 6146 is an 
important and necessary part of any ``libel tourism'' bill. 
Unfortunately, it doesn't put an end to the problem and doesn't provide 
any deterrence from these suits being filed in the first place. But it 
is my hope that during the 111th Congress we can have hearings on this 
important issue and that Representatives Cohen and Issa, along with 
Senators Specter and Lieberman and I, can sit down together and craft a 
bill that we can all agree on and that will solve this problem once and 
for all.
  Mr. ISSA. Mr. Speaker, I rise today in support of H.R. 6146, a bill 
to stifle the practice of libel tourism.
  The right to free speech in the United States is of fundamental 
importance. It is arguably the cornerstone of our democracy and the 
hammer that keeps our government and its officials in check.
  We must not take our right to free speech for granted, for our level 
of freedom is not honored in many countries around the world. China is 
an easy example of government-controlled speech, as demonstrated 
recently by the restrictions placed on the international press during 
the Olympic Games. But other countries are more of a surprise.
  Our friend and ally, Great Britain, takes a much more liberal 
position on libel laws than the United States. They allow judgments 
against defendants that would not pass muster in our domestic courts, 
and for this reason many plaintiffs in libel suits involving American 
defendants seek redress in British courts.
  For example, the book, ``Alms for Jihad'', written by a former State 
Department analyst and a University of California Santa Barbara 
professor, looked into the network of global finances aiding 
international terrorism. The book mentioned a Saudi billionaire as 
being involved at some level, a claim not without controversy, but also 
not without legitimate research by the authors.
  The threat of lawsuit by the billionaire in the British courts alone 
caused Cambridge University Press to shred all unsold copies of ``Alms 
for Jihad'' in addition to asking libraries the world over to pull the 
book.
  We cannot allow libel laws in other countries to censor the writings 
of American authors when laws within the United States find the 
writings legitimate. Doing so will erode our right to free speech in 
the United States, an outcome I believe we all find abhorrent.

[[Page 22815]]

  I cosponsored H.R. 6146 with Congressman Steve Cohen to help 
eliminate this threat. The bill instructs courts within the United 
States not to enforce libel judgments of foreign courts unless the 
domestic court finds the judgment is consistent with the First 
Amendment. This is a fairly simple mechanism, but one that we expect to 
help control the threat of censorship arising from libel tourism.
  Without the fear of foreign judgments against legitimate writings, 
American authors should feel safe continue to promote national and 
international discourse and debate.
  Mr. SMITH of Texas. Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore (Mr. Altmire). The question is on the motion 
offered by the gentleman from Michigan (Mr. Conyers) that the House 
suspend the rules and pass the bill, H.R. 6146, as amended.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the bill, as amended, was passed.
  A motion to reconsider was laid on the table.

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