Sunday, September 28, 2008

The Free Speech Protection Act of 2008: "The Wrong Victim"

House Bill H. R. 5814 has now passed in the House of Representatives; next is the battle in the Senate.

For those of you who don't know what it is about, here are excerpts from H. R. 5814:


This Act may be cited as the 'Free Speech Protection Act of 2008'.


The Congress finds the following:

(1) The freedom of speech and the press is enshrined in the First Amendment to the United States Constitution.

(2) Free speech, the free exchange of information, and the free expression of ideas and opinions are essential to the functioning of representative democracy in the United States.

(3) 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.

(4) The First Amendment jurisprudence of the Supreme Court, articulated in such precedents as New York Times v. Sullivan, 376 U.S. 254 (1964), and its progeny, reflects the fundamental value that Americans place on promoting the free exchange of ideas and information, requiring in cases involving public figures a demonstration of actual malice--that is, that allegedly defamatory, libelous, or slanderous statements about public figures are not merely false but made with knowledge of that falsity or with reckless disregard of their truth or falsity.

(5) Some persons are obstructing the free expression rights of Americans, and the vital interest of the American people in receiving information on matters of public importance, by first seeking out foreign jurisdictions that do not provide the full extent of free-speech protection that is fundamental in the United States and then suing Americans in such jurisdictions in defamation actions based on speech uttered or published in the United States--speech that is fully protected under First Amendment jurisprudence in the United States and the laws of the several States and the District of Columbia.

(6) Some of these actions are intended not only to suppress the free speech rights of journalists, academics, commentators, experts, and other individuals but to intimidate publishers and other organizations that might otherwise disseminate or support the work of those individuals with the threat of prohibitive foreign lawsuits, litigation expenses, and judgments that provide for money damages and other speech-suppressing relief.

(7) 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.

(8) 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, in order to avoid the Supreme Court's First Amendment jurisprudence and frustrate the protections it affords Americans.

(9) 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.

(10) Journalists, academics, commentators, experts, and others subjected to such suits are suffering concrete and profound financial and professional damage for engaging in conduct that is protected under the United States Constitution and essential to informing the American people, their representatives, and other policy-makers.

(11) In turn, the American people are suffering concrete and profound harm because they, their representatives, and other government policymakers 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.

(12) 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 in part, in the United States.


(a) Cause of Action- Any United States person against whom a lawsuit is brought in a foreign country for defamation on the basis of the content of any writing, utterance, or other speech by that person that has been published, uttered, or otherwise disseminated in the United States may bring an action in a United States district court specified in subsection (f) against any person who, or entity which, brought the foreign suit if the writing, utterance, or other speech at issue in the foreign lawsuit does not constitute defamation under United States law.

(b) Jurisdiction- It shall be sufficient to establish jurisdiction over the person or entity bringing a foreign lawsuit described in subsection (a) that such person or entity has filed the lawsuit against a United States person, or that such United States person has assets in the United States against which the claimant in the foreign action could execute if a judgment in the foreign lawsuit were awarded.

(c) Remedies-
(1) ORDER TO BAR ENFORCEMENT AND OTHER INJUNCTIVE RELIEF- If the cause of action set forth in subsection (a) is established, the district court shall order that any foreign judgment in the foreign lawsuit in question may not be enforced in the United States, including by any Federal, State, or local court, and may order such other injunctive relief that the court considers appropriate to protect the right to free speech under the First Amendment to the United States Constitution.

(2) DAMAGES- In addition to the remedy under paragraph (1), damages may be awarded to the United States person bringing the action under subsection (a), based on the following:
(A) The amount of the foreign judgment.

(B) The costs, including all legal fees, attributable to the foreign lawsuit that have been borne by the United States person.

(C) The harm caused to the United States person due to decreased opportunities to publish, conduct research, or generate funding.

(d) Treble Damages- If, in an action brought under subsection (a), the factfinder determines by a preponderance of the evidence that the person or entity bringing the foreign lawsuit at issue intentionally engaged in a scheme to suppress First Amendment rights by discouraging publishers or other media not to publish, or discouraging employers, contractors, donors, sponsors, or similar financial supporters not to employ, retain, or support, the research, writing, or other speech of a journalist, academic, commentator, expert, or other individual, the factfinder may award treble damages.

(e) Expedited Discovery- Upon the filing of an action under subsection (a), the court may order expedited discovery if the court determines, based on the allegations in the complaint, that the speech at issue in the foreign defamation action is protected by the First Amendment to the United States Constitution.

(f) Venue- An action under subsection (a) may be brought by a United States person only in a United States district court in which the United States person is domiciled, does business, or owns real property that could be executed against in satisfaction of a judgment in the foreign defamation lawsuit giving rise to the action.

(g) Timing of Action; Statute of Limitations-
(1) TIMING- An action under subsection (a) may be commenced after the filing of the defamation lawsuit in a foreign country on which the action is based.

(2) STATUTE OF LIMITATIONS- For purposes of section 1658(a) of title 28, United States Code, the cause of action under subsection (a) accrues on the date on which the defamation lawsuit in a foreign country on which the cause of action is based is filed.

For a summary from its sponsors of this bill's importance, I quote a passage from a news release from Senator Joe Lieberman:

"Freedom of speech, freedom of the press, freedom of expression of ideas, opinions, and research, and freedom of exchange of information are all essential to the functioning of a democracy, and the fight against terrorism," Senator Specter said. "There is a real danger that American writers and researchers will be afraid to address the crucial subject of terror funding and other important matters without these protections."

"Discovering the truth requires full and open debate, which is not possible when courts are used to chill inquiry and research," Senator Lieberman said. "The freedom of American journalists should not be threatened by foreign courts that do not adhere to America's principles of free speech."

"Our journalists provide us with insight on issues that affect all Americans, such as war and terrorism," Rep. King said. "We cannot allow their voices to be silenced by those who prefer to keep secret the inner details of these issues. American authors and journalists should be able to practice their first amendment right without the fear of a lawsuit."

This legislation creates a federal cause of action and federal jurisdiction so that federal courts may determine whether there has been defamation under United States law when a U.S. journalist, speaker, or academic is sued in a foreign court for speech or publication in the United States. The bill authorizes a court to issue an order barring enforcement of a foreign judgment and to award damages.

The impetus for this legislation is litigation involving 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 Ehrenfeld for libel in England, although only 23 books were sold there.

For some background, we have the following excerpt from U.S. should stand up to 'libel tourism', published earlier this month:

When Rachel Ehrenfeld wrote Funding Evil: How Terrorism Is Financed and How to Stop It, she assumed she would be protected by the First Amendment. She was, in the United States. But a wealthy Saudi businessman she accused in the book of being a funder of terrorism, Khalid bin Mahfouz, sued in Britain, where the libel laws are heavily weighted against journalists, and won a sizable amount of money.

The lawsuit is a case of what legal experts are calling "libel tourism." Ehrenfeld is an American, and “Funding Evil” was never published in Britain. But at least 23 copies of the book were sold online, opening the door for the lawsuit. When Ehrenfeld decided not to defend the suit in Britain, bin Mahfouz won a default judgment and is now free to sue to collect in the United States.

British law is un-American

The upshot is a First Amendment loophole. In the Internet age, almost every American book can be bought in Britain. That means American authors are subject to being sued under British libel law, which in some cases puts the initial burden on the defendant to prove the truth of what she has written. British libel law is so tilted against writers that the U.N. Human Rights Committee criticized it last month for discouraging discussion of important matters of public interest.

Bin Mahfouz, who has denied financing terrorism, said Ehrenfeld's book contained inaccuracies and demanded a retraction. He also demanded a significant contribution to a charity of his choice – a charity Ehrenfeld said she feared would be one with ties to terrorism. Ehrenfeld, who describes herself as being "in the business of stopping people who fund terrorism," refused to back down. "I said," she later recalled, "he's found the wrong victim."

For a list of Senators you can contact regarding this bill, see Rachel's Law for Free Speech -- although I recommend you investigate this matter yourself and write your own letter, not just copy-and-paste the letter found at the link.

For more information, you can also see the posts linked in my sidebar; for other background and contact information, you can see Exclusive: Your Turn: Contact Congress about the Free Speech Protection Act.

I also highly encourage you to go to Dr. Ehrenfeld's website to learn more, and to contribute to our legal counterjihad.

To hear Sheikh bin Mahfouz' side of the story, see the link in my sidebar under the heading "Financiers of Holy Terror".

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