posted by Christopher Howard — Mar 10, 2009
Representative Peter King, a Republican from the State of New York, reintroduced the Free Speech Protection Act (HR 1304) to protect the First Amendment rights of Americans who are sued for defamation in foreign courts. With the rise of libel tourism, the fear of a lawsuit has become a deterrent for American authors, journalists, and publishers seeking to publish works on topics such as terrorism. The bill provides protections that will deter foreigners from suing Americans.
Recently there has been a rise in “libel tourism,” where foreigners take advantage of plaintiff-friendly foreign court systems, such as in the United Kingdom, in order to sue Americans for defamation. When sued in foreign courts, it has been difficult for Americans to countersue, as they could not establish standing in US courts. Without the ability to retaliate, there is nothing to discourage the practice of libel tourism.
The Free Speech Protection Act does the following to protect Americans and deter foreign libel lawsuits:
- Allows US persons to bring a federal cause of action against any person bringing a foreign libel suit if the writing does not constitute defamation under US law
- Bars enforcement of foreign libel judgments and provides other appropriate injunctive relief by US courts if a cause of action is established
- Awards damages to the US person who brought the action in the amount of the foreign judgment, the costs related to the foreign lawsuit, and the harm caused due to the decreased opportunities to publish, conduct research, or generate funding
- Awards treble damages if the person bringing the foreign lawsuit intentionally engaged in a scheme to suppress First Amendment rights
- Allows for expedited discovery if the court determines that the speech at issue in the foreign defamation action is protected by the First Amendment.
While the goal of the bill is to protect Americans from the exploitation of libel tourism, it does not intend to limit legitimate cases of defamation. Nothing in the bill limits the rights of foreign litigants who bring forward good-faith defamation actions against journalists and others who have purposely and maliciously published false information.
In 2008, New York State passed a similar bill entitled Rachel’s Law. King’s bill raises the issue on the federal level so that all American’s rights can be protected. Senators Specter, Lieberman, and Schumer have introduced companion legislation in the Senate.