A bill to protect authors, journalists, and publishers from “libel tourism” recently passed both houses of Congress. The bill, known as the SPEECH Act, prevents lawsuits brought against American writers in foreign courts from limiting free speech in America. The Securing the Protection of our Enduring and Established Constitutional Heritage or SPEECH Act passed the Senate and House in July.
Libel tourism refers to bringing a defamation lawsuit in a foreign country that is unrelated to the published material and where protection of free speech is weaker than in the United States. The goal is usually to silence or intimidate the journalist or author. Recent defamation lawsuits in the U.K. and Canada brought against American authors spurred legislators to take action.
Director of the American Center for Democracy Dr. Rachel Ehrenfeld, who documents and publishes terrorist organization’s funding sources, has been campaigning for protection from the judgments of foreign courts. After she exposed how Saudi billionaire Khalid bin Mahfouz funded al-Qaeda, Hamas, and other terrorist organizations in her 2003 book "Funding Evil: How Terrorism is Financed and How to Stop It," Mahfouz sued her for libel in London.
In a piece at her center’s website, Ehrenfeld explains she did not acknowledge the British court's jurisdiction over her because she does not live in the U.K and her book was not published or marketed there. When she did not show, the English court ruled against her by default, fined her, and ordered her to apologize, retract her statements, and cover Mahfouz's legal fees.
Ehrenfeld countersued Mahfouz in New York to prevent the British court’s judgment from being enforced. But because of the court’s lack of jurisdiction over Mahfouz, the court dismissed her case. So the New York State Legislature acted quickly to pass a law giving New York courts jurisdiction over foreign libel plaintiffs who sue New York authors and publishers abroad.
Ehrenfeld continued her campaign and several states passed laws to protect their residents from defamation judgments by foreign courts. She was also a key force behind federal legislation.
The Senate bill, cosponsored by Senate judiciary committee chairman and ranking member Sens. Patrick Leahy (D-Vt.) and Jeff Sessions (R-Ala.), passed the Senate on July 19.
“Libel tourism … can cause Americans to defer to the country with the most chilling and restrictive free speech standard, to determine what they can write or publish. This undermines our First Amendment,” said Sen. Patrick Leahy in a statement.
The bill, which passed the House for a second time July 27, protects authors, journalists, and publishers by preventing U.S. federal courts from acknowledging or enforcing a judgment in a foreign libel suit that goes against the First Amendment.
“Our First Amendment rights are among the most fundamental principles laid out in the Constitution. It is vital we ensure that these rights are never undermined by foreign judgments,” said House bill sponsor Congressman Steve Cohen (D-Tenn.), in a statement after the bill passed the House.
The bill also empowers authors and publishers to clear their names by showing that a foreign judgment is not in line with American law, even when the foreign plaintiff has not tried to enforce the judgment in the United States.
After passing the House, the bill was sent to the president and is awaiting Obama’s signature.