On Tuesday, February 23, 2010, Bruce Brown, a partner in the Washington, D.C., office of Baker Hostetler, testified before the Senate Judiciary Committee on "libel tourism," the phenomenon of foreigners suing Americans for defamation overseas to avoid the protections of the First Amendment. Brown's testimony focused on legislative solutions to protect publishers at home from being forced to curtail their speech to the standards of weaker free speech laws abroad, noting in his opening statements that "short of having international treaties with jurisdictional and choice of law provisions, we may not be able to eliminate this threat entirely. But there are defensive measures we can take to help reduce the risks that publishers face today."
Brown is a leading authority on this recent global forum shopping for libel cases. In February 2009, Brown testified before the House Judiciary Committee on libel tourism, and he has written articles on the subject for publications including the Washington Post and the Wall Street Journal. Committee Chairman Sen. Patrick Leahy (D-Vt.) and many of the other Senators present at the hearing, entitled "Are Foreign Libel Lawsuits Chilling Americans' First Amendment Rights?," had no misconceptions of the threat that libel tourism poses towards writers and news organizations in the United States. "As much as we might like to, we cannot legislate changes in foreign law to simply eliminate libel tourism. But I believe we can all agree that our courts should not become a tool to uphold foreign libel judgments that would undermine our First Amendment or due process rights," Sen. Leahy remarked in his opening statements. Brown set forth a detailed plan for how Congress could combat the problem. He and Kurt Wimmer, a partner at Covington and Burling LLP who also testified, responded to questions by Senators Al Franken (D-Mich.), Jon Kyl (R-Ariz.), Jeff Sessions (R-Ala.), Arlen Specter (D-Pa.), and Sheldon Whitehouse (D-R.I.).
Libel tourism bills have been passed in four states: New York, Illinois, California and Florida. They have been introduced in several others, but as Brown pointed out at the hearing, "This is not an area where the speaker's protection should depend upon the substantive laws of the state in which he or she resides or whether that state’s long-arm statute reaches as far as due process will allow." Brown proposed several strategies for dealing with libel tourism, the most essential being the barring of recognition of any libel judgment obtained overseas, in an enforcement proceeding in the United States, unless it is consistent with both due process and the First Amendment. Two libel tourism bills are currently under consideration in the Senate–one introduced by Rep. Steve Cohen (D-Tenn.) and which passed in the House, and the other introduced by Sen. Specter, which is still pending.
Brown and Bruce Sanford, a partner at Baker Hostetler regarded as one of the most accomplished press lawyers in the nation, have worked with several authors to defend against the threat of libel suits overseas, including Humayun Mirza, a U.S. citizen and retired World Bank official, who had written a biography of his father, Pakistan's first president. In a prominent example of the "chilling" effect of libel tourism, Mirza was forced to destroy the first edition of his book and release a modified version after his father's second wife attacked Mirza for truthful content in his book. Because the events had taken place over a half-century before publication and evidence no longer existed, he would not be able to prove that the content was true, as U.K. law requires.
Brown's work on First Amendment issues has earned him a ranking among Washington's top media and First Amendment lawyers in Washingtonian magazine, Best Lawyers in America and Super Lawyers Washington, DC. Along with Sanford, Brown works closely with the Society of Professional Journalists, the nation's oldest and most broad-based journalism organization, on legislative matters in Washington that impact American journalists.