Today, President Obama signed into law the Securing the Protection of Our Enduring and Established Constitutional Heritage Act (the “SPEECH Act”), a bill passed by Congress last month that is aimed at curbing the problem of “libel tourism.” Washington D.C. partner Bruce Brown testified before both the Senate and House Judiciary Committees in support of the legislation.
Libel tourism describes the recent and growing phenomenon of libel plaintiffs who file defamation suits overseas against U.S. authors or journalists seeking out foreign jurisdictions where a lower legal standard allows for much easier recovery. After securing a judgment, the foreign libel plaintiff can then try to enforce the judgment in a U.S. court, effectively allowing the recovery of damages against a U.S. citizen while bypassing the protections afforded by the First Amendment.
The SPEECH Act protects U.S. authors and journalists from libel tourism overseas by barring enforcement in U.S. courts of any foreign libel judgment that does not comport with both the First Amendment and due process. The Act also allows U.S. citizens sued for defamation overseas to bring an action for a declaratory judgment that the foreign court’s award of relief is repugnant to the Constitution. To help ensure that U.S. courts can bring a foreign libel plaintiff within their jurisdictional reach, the Act contains a nationwide service-of-process provision which allows a U.S. court to exercise personal jurisdiction over a foreign libel plaintiff to the fullest extent of the Due Process Clause notwithstanding any applicable state long-arm statute. To ensure consistency in application of the law, the Act also provides for removal of any enforcement action from state to federal court. Finally, as a mechanism to deter potential libel tourists, the Act permits a U.S. court to award attorneys’ fees to a U.S. citizen (but not a foreign libel plaintiff) who prevails in an enforcement action.
Libel tourism drew the attention of legislators following the resolution of a 2004 lawsuit filed in the United Kingdom against American author Rachel Ehrenfeld by Saudi businessman Khalid bin Mahfouz for statements in her book, “Funding Evil: How Terrorism is Financed and How to Stop It,” where she alleged that bin Mahfouz had funded organizations tied to terrorism. The English courts permitted the suit to proceed despite the fact that only 23 copies of Ehrenfeld’s book made their way to the U.K. through an online distributor. The U.K.’s plaintiff-friendly defamation laws resulted in a $225,000 judgment against Ehrenfeld, who chose not to defend herself in the forum. Instead, Ehrenfeld filed suit in federal court in New York seeking to have the foreign judgment declared unenforceable. The American court, however, refused to exercise jurisdiction over bin Mahfouz, who had no ties to the U.S. and had not attempted to enforce the judgment.
In response to Ehrenfeld’s situation, the New York legislature in 2008 passed the Libel Terrorism Protection Act. The legislatures in Illinois, Maryland, California, Florida, and Utah soon followed with their own libel tourism statutes. The SPEECH Act is the first federal statute to combat the problem of libel tourism.