[Congressional Record (Bound Edition), Volume 156 (2010), Part 10]
[House]
[Pages 14182-14184]
[From the U.S. 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.
       ``(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

[[Page 14183]]

     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 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

[[Page 14184]]

     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.
  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.

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