International law writer Andrew McCarthy has an interesting blog post discussing the ways in which the extremely broad libel and hate speech laws of some foreign nations can be used to undermine free speech rights in the US. For more detail, see his August article on the subject. As McCarthy explains, some states have very broad libel laws that make it easy for public figures to sue their critics even if there is no real proof that the latter have made any false statements about the plaintiff. In addition, some of these nations, including Britain, have very low standards for establishing jurisdiction in libel cases; in some cases it's enough that a few copies of the defendant's book or article have been sold in Britain even if the work was originally published elsewhere.
I. A Growing Threat to Freedom of Speech.
McCarthy discusses several recent cases where radical Islamists have tried to use British libel law to intimidate US journalists and academics. However, the problem goes far beyond these particular cases. Indeed, the most famous case where British libel law was used against an American author was the 1999 lawsuit by British Holocaust denier David Irving against historian Deborah Lipstadt, who had harshly (though accurately) criticized Irving's writings on the Holocaust in one of her books. Although Lipstadt ultimately prevailed, her supporters had to spend hundreds of thousands of dollars on legal fees to fend of a lawsuit that would have been a no-brainer dismissal under the First Amendment in this country.
A similar, though so far less virulent, threat is posed by some foreign states that combine lax jurisdictional standards with expansive hate speech laws that can also be used to punish speech by American writers that is legal in the United States. Even more far-reaching are efforts to establish broad hate speech norms under international law, including the ongoing attempt to create an international law norm against "defamation of religion." John McGinnis and I discuss other similar efforts in this article (pp. 1219-21).
In the case of both libel and hate speech law, foreign states often use it to suppress speech that goes far beyond extreme racist or obviously libelous utterances. For example, hate speech laws in several European states were used to censor the writings of Oriana Fallaci, the late Italian writer who wrote several books attacking radical Islamism (see the discussion of this case and others like it in my article with McGinnis).
II. What is to be Done?
That is the key question famously posed by Lenin, who knew a thing or two about suppressing free speech himself. One relatively easy step is to continue to resist efforts to use international hate speech law to override American law. More generally, we should resist all efforts to impose international law on the US that has not been duly ratified by our domestic lawmaking processes. In the case of international law that violates the Constitution, that means that the US can only be bound by it if it is incorporated into a constitutional amendment.
Determining what to do about expansive libel or hate speech judgments entered against American citizens in foreign states is much harder. One response is to pressure those states' governments to change their laws. We should indeed do this when possible, but realistically such efforts are likely to be overshadowed by competing foreign policy priorities.
McCarthy and others propose the creation of a US legal cause of action against plaintiffs who use foreign libel law to attack the free speech rights of Americans. To my mind, this approach deserves serious consideration. As a tentative proposal, I suggest that Congress consider the possibility of creating a federal cause of action for US citizens who have been victimized by a foreign libel or hate speech lawsuit attacking speech that would be legal in the United States under the First Amendment. The US writer should be able to recover any damages that the foreign court forced him or her to pay, plus legal fees, plus perhaps some amount of punitive damages in order to promote the goal of deterrence. Judgments under the proposed statute should be payable out of any assets that the defendant may have within the jurisdiction of the United States. I stress that this proposal is highly tentative and that I haven't even come close to working out all the details. Still, something like it may be the right approach to this problem.
But according to Justice Breyer, international norms (or least Euro-Canadian norms) may be acceptable sources for interpreting the contemporary meaning of the Constitution. Presumably this applies to the first as well as the eighth. Who needs another amendment?
I ask because a while ago a wiki I admin'ed for, and several contributors to it, were threatened with legal actions by an Australian who claimed that his country created a cause of action and that his law, not US law would be the relevant one. My position was that the wiki was hosted in Florida, so Federal and Florida law was the operative one, and thus we had nothing to worry about because out speech was protected by the first amendment.
And who would be the defendant to this cause of action? The foreign government? (Good luck with that.) The plaintiff in the foreign court? I would think there would be serious problems with that, too. ("Hey, I just won a case under the duly-enacted laws of my country. Guess what, I owe someone in the US money because the US disagrees with our laws . . .")
Don't like it? Then don't have assets in our country.
If you're actively undermining our freedoms, the least you could do is LEAVE.
That would prevent Americans from using foreign laws to attack other Americans, and it would put a crimp on rich Arab terror-funders' investment portfolios.
This situation calls for government action to either keep such litigation from proceeding to judgment, or to prevent such foreign judgments from being enforceable in most other countries.
This is a famous error again. What is being described is not international law. The British libel law is British domestic law. All those libel laws of states complained about above are domestic laws of those states. They are foreign hate speech law - not some form of international law. They are no more international law than the First Amendment of the United States or a state driver's license law. Please stop mixing things up.
And we are bound by customary international law by the general practices that are accepted as law by states like us. We are happy to be bound by customary international law all the time because those rules are of assistance to keeping our international systems going.
In your vision, the United States Navy would not be able to assert customary international law rules in the way it likes to do it to protect it in the manner it operates in the world.
Why keep making a virtue of ignorance like this? It is pitiful.
Best,
Ben
It depends on how eager they are to meet Allah sooner rather than later.
International law works in basically one of two ways - general agreement, or fear. While the former should always be striven for first, fear of the consequences is always present.
At least in the U.S. if a State legislature created a cause of action to undo a final court judgment in the same State, it arguably could create a Separation of Powers problem? Don't know, just brainstorming.
So, in that famous instance of D favorable British libel law ensnaring an American author, a number of remarkable things happened. The English Rule should have done something to remedy the injustice of it all, that is that Lipstadt and her publisher ever had to defend against such an action in a British court, but it didn't because you had an impecunious P going at it pro se. (Pro se litigants, even when insane, as they often are, can be extraordinarily vexatious.)
An example is Telnikoff v. Matusevitch, 702 A.2d 230 (1997 Md. Ct. App.) a case which had been referred by a federal appeals court for an advisory opinion, and the highest court in Maryland refused recognition of a British libel judgment in the United States on the grounds that British libel law provided too little protection to libel defendants, and enforcement of the judgment in Maryland would be contrary to public policy. (A U.S. District Court had earlier found that it would violate the defendant's First and Fourteenth Amendment rights but the Maryland Court did not rule on this point.) A somewhat related case is the ruling by a District Court in November, 2001 in San Jose, CA in Yahoo!, Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme, 169 F.Supp.2d 1181 (N.D.Cal.2001) finding that an order by a French Court requiring Yahoo!, Inc. to remove Nazi paraphernalia from the Internet constituted a violation of the First Amendment thus precluded enforcement of the French order within the United States. However, for various reasons, the ninth circuit refused to uphold the injunction (and the case was eventually settled in France).
As for the proposed cause of action, it seems to reject any notion of comity for foreign defamation laws. Since the U.S. has probably the most defendant-friendly defamation law anywhere, this would give almost any American defendant the right to sue foreign plaintiffs in U.S. courts. And what would prevent foreign countries from establishing a counter-counter-remedy?
In your vision, the United States Navy would not be able to assert customary international law rules in the way it likes to do it to protect it in the manner it operates in the world.
Are there invisible manacles of which I am unaware? How are we "bound" by international law or international norms? Who is going to try to bind an American carrier group?
Our Navy does comply with international law, not because it is "bound" by it, but because our domestic government directs them to do so.
Nothing in Ilya's statement precludes the U.S. from ratifying treaties. Nothing in Ilya's statement precludes the executive from ordering the Navy to comply with international norms, for the time being, simply because it is a good idea.
If you want to try to get a court order to force the U.S. Navy to follow international law, good luck.
Mr. Davis wrote: This is a famous error again. What is being described is not international law. The British libel law is British domestic law. All those libel laws of states complained about above are domestic laws of those states. They are foreign hate speech law - not some form of international law. They are no more international law than the First Amendment of the United States or a state driver's license law. Please stop mixing things up.
You are the one who is confused, Mr. Davis. You should re-read his post, instead of firing off with a knee-jerk response. Ilya describes three types of anti-speech laws:
1) foreign libel laws
2) foreign hate speech laws
3) international hate speech law
The first two types are foreign laws and are not "international" in character. The third type is international. Thankfully, it doesn't really exist yet. However, anti-freedom scholars are pushing for it, and given the direction of the E.U. and recent events in Muslim countries, it would not be surprising to see developments in that area in the next few years.
Recently, Ahmadinejad said he wanted to create a "Muslim World Court." Presumably, that court would hear blasphemy cases, especially if they were international in character.
You asked, "And what would prevent foreign countries from establishing a counter-counter-remedy?"
Superior force.
I would think our harassment laws might qualify. Also our gender "quotas".
A few descendants of the great players wanted to reform the team and regain that former glory, but without putting in the work required of a great team. Instead they demanded that the rules be changed to favor their team. They wanted their basket to be twice the size of any other team's, and only five feet above the floor. They wanted to retain the right to block the shots and passes of their opponents, but also wanted to make their own passes and shots without hindrance of any kind.
These demands struck many as odd, but most remarkable was the reaction of other teams. Many adopted the new, informal rules, apparently due to a belief that failure to do so would mean they were bad persons. Others tried to retain the old rules, which created friction with those that had changed.
These informal rules have only existed for a short time, so basketball experts cannot predict their ultimate success, but most agree that ours is an interesting moment in the history of the sport.
Germany, for example, does not accept the concept of punitive damages in lawsuits. It will, fo course, not enforce US judgments for punitive damages. Furthermore, it forbids its companies from cooperating in pre-trial discovery in US lawsuits in which punitive damages are sought. This puts some corporations in the bind of being forced to violate the laws of one coutry or the other.
As for defamation, possible solutions might include:
Treaties that limit liability for defamation among signatories (not likely that many other countries will sign on)
Treaties requiring that subject matter jurisdiction for defamation be limited to courts in the nation where the material was published.
Statutes precluding execution in the US of international defamation judgments absent bilateral or multilateral treaty
Government programs that defend defend plaintiffs in courts of nations certified to have defanation standard that do not meet US criteria.
Government programs that reimburse parties against whom such judgments have been enforced in foreign nations. The last two will run against the libertarian grain of some.
Mr. McCarthy's solution of statutorily enacting a cause of action against plaintiffs in other nations.
...might have some application here, at least against anyone in the US trying to enforce an 'unconstitutional' settlement awarded in a foreign court.
The biggest lesson I got from my conflict of laws class (test on friday) is that the judges will contort any law they can to come up with any result they want.
But I don't think this will come down to a conflicts issue. The internet right now is a breathtakingly liberating device, it has done more to revitalize freedom than anything in history.
Yet, it has a great potential to enslave us all if we're not careful, and the enslavement could be more total than ever before because of its universal scope.
The instances with Google, Microsoft, and Cisco bowing to the will of the Chinese government is one example of how it could start. To do business there, these companies agreed to take steps to curtail the freedom of the Chinese people.
As even the smallest of businesses start reaching out to more parts of the world using the power of the internet, nations will get jurisdiction over just about anyone. There may not be personal jurisdiction, but they will be able to seize bank accounts as the money zips through internet paths that happen to route through their servers. I have no doubts that governments will cooperate in allowing this because governments don't much care about rights, they care about their own power. Even were the US to be the last holdout, it wouldn't stop the result.
Perhaps someday no one, but starting with news media and larger organization and eventually individuals, will be willing to violate the law of any nation for fear of having their money seized, or their ability to do business in that nation restricted. Notice already CNN has admitted filtering the news from Iraq prior to the first gulf war just so it could have access to the country. If CNN had assets in a country that were threatened with seizure, do you think they would suddenly find the moral character to report the truth?
Say someone has radical ideas of Nazi Germany. He shouldn't but he's looney. In the US, you're allowed to be looney, but in Germany such talk is a crime. What's to stop Germany from taking action against you if your website violates their law? We don't even need a book to be published. With the EU, Germany might even have the easy ability to seize assets crossing anywhere through Europe. Now imagine it's not neonazi propaganda, but anti-Castro or anti Chavez writings.
Even were such a seizure extralegal, the expense involved in fighting it and returning the moeny would be prohibitive to most individuals, and a government could simply act at the flip of a switch, at virtually no cost to them. Banks have assets all over the world, they likely won't risk their assets to protect one individual's assets.
Sure the United States would still have its own laws, we would hope, but when laws are able to be enforced internationally, then all laws will sink to the lowest common level. Independent sources, bloggers, faced with seizure of their money, foreclosures on their homes, may not be able to end run around mainstream media any longer.
This is a grim future scenario I've sketched here. I think it is highly likely. I hope we find a way to avoid it.
In the meantime, I fully intend to exploit our new internet freedom as much as I can.
But I think that the point made by several people above (thanks to Bruce &Paul for bringing the cases and Jack Goldsmith's article to light) is that there should be a relatively straight-forward way of preventing problematic foreign judgments from having effect in the US, where the bloggers supposedly live. This approach strikes me as much more sound, and less likely to create issues of comity, than McCarthy's counter-cause of action.
on a different note, picpoule, there are usually not separation of power questions when a state legislature amends civil law to screw up pending civil proceedings. Cf. the antitrust case brought against medical residency programs, which had to be tossed after Congress granted it antitrust immunity after litigation began. But see a couple In re cases from the 1800s whose names I can't recall right now.
The question is more: say Michigan has a cause of action for tortious interference with married relationships, but that Ohio's Supreme Court had abolished a similar cause of action, and the Ohio legislature passed a McCarthy-like law allowing Ohio defendants to recover against successful plaintiffs in other jurisdictions. Michigan gal sues Ohio guy for tortious interference and wins. Ohio guy takes the judgment and gets a judgment against Michigan gal under the Ohio law. Now what?
There is a good argument for this in international commerce. Under NAFTA, any time the Mexican government takes an action that decreases the value of a U.S. company's investment there, our company can sue for damages. Why does Mexico choose to be bound for this? Obviously, one could argue 'superior force', but realistically, they know we will not call out the marines - or even enforce enormous economic sanctions - over every claim one of our company's have. Instead, our companies can count on suing and receiving a fair hearing and compensation in a civilized manner.
Anyone who does not appreciate the value of this aspect of International Law probably also does not appreciate the value of a domestic court system - the enormous savings on transaction costs when you do not have to have a power-pissing contest each time you have a dispute or claim is enormous.
Of course, in the international arena we always retain our sovereignty, so we will refuse to recognize either foreign or international laws if they do not comport with our sense of justice / values / Constitution, etc. That would appear to be the case here when foreign countries are trying to infringe our Constitutional rights - though I confess to not understand why 'don't publish there' is not an answer to the more spurious claims. It would seem that Penguin only had to fight the suit named because it wanted to continue to publish in the U.K. - I can imagine no theory or treaty where we would say that countries do not have some right or ability to control what is published there, just as get ticked and insist we can drag foreigners into court anytime their publications or products harm our citizens.
As for the "resist international law in general" idea - I have no opinion on the theoretical constitutional discussion, but in this instance it appears to be a red herring. There is no danger of the First Amendment being reconsidered on the basis of international law - its protections are almost absolute and not open to interpretation upon changing societal mores. This is different, I think, than opinions about what constitutes reasonable punishment or reasonable interrogation techniques, which do change with time. Whether we should look abroad for a persuasive but not binding opinion on how we should handle such issues is beyond me.
Remember the FCC came into existence only because radio waves can't be contained within state borders. Okay, fine. That gave the US government the legal argument to control radios and television broadcasts since any broadcast is interstate commerce and because frequencies have to be coordinated or there'd be chaos.
But then cable tv got more popular. Cable tv doesn't have to cross state lines. It is not limited by sharing the spectrum of electromagnetic frequencies. They can use whatever type of signal they want, it's all contained in wires, not the air.
But the FCC still control cable television because GHW Bush decided it should. And no one bothered to complain that I know of.
The same will likely happen internationally. Banks will want to operate in other nations and will be beholden to the laws of those nations. They will contract with their customers allowing this. Sure, contract of adhesion, but it will still happen because banks will win because they have more money and they don't want to lose their international accounts.
As for your Michigan v Ohio example: This is pretty settled by existing law. The first case is decided, and the other state must abide by that decision. Res judicata. States are bound by the Constitution to honor the decisions of other courts. Once it becomes a decision, that's it. The other state cannot reverse it. The Constitution provides an ironclad rule of full faith and credit. See Fauntleroy v. Lum, 210 U.S. 230, from 1908. I don't know what a "McCarthy-like" law is.
That's a pretty big incentive, and we've seen that Google, CNN, and others will assist in oppression of people or fabricate news to keep doing business in a country.
I agree that US domestic law would never allow the first amendment to be compromised, but private companies are not bound by the first amendment. They are free to curtail their own speech, and they can restrict the speech of anyone using their equipment. Penguin need not publish a book in the UK, theoretically they need only put something on the internet that can be read by someone in the UK (I know this is not true today, but it is a potential).
If such a country wanted to punish Eugene Volokh for publishing this blog, it would not succeed in US courts. But it might succeed in hamstringing his ISP. Or the companies that own the servers that the data passes through. US law wouldn't allow that, but that wouldn't stop other nations from seizing assets of those companies. As businesses get more and more global at all sizes of companies, this becomes increasingly possible.
Link
It seems we are bound only to the extent to which we agree to be bound.
And you're right, of course, that in most instances the Michigan/Ohio example is settled by the ff&c clause, which is why we don't see McCarthy-like laws governing state-to-state relations in the US.
I'm not sure what alternatives to subjecting banks, companies, and people to the laws of the countries in which they travel or do business you suggest we follow. I confess none come to mind.
A couple more general points:
1. As has been pointed out upthread, the US is hardly an innocent victim in questions of claiming jurisdiction of folks beyond our borders whose actions have some impact here. Even setting aside the rendition, &tc, policies used for the GWoT, application of US law (even US criminal law) to foreign persons whose activities have effect in the US is quite common. So the basic question of a British court telling a UK press (Cambridge University, anyone?) that it is subject to potential liability for the writings of an American author it published is uncontroversial. (The "3 people brought the book back from vacation" examples are of course much more tenuous . . .)
2. Should we really care if our libel law gets more restrictive? The First Amendment proto-scholar in me shudders at the thought, but the fact is that the US is way out at the end of the spectrum on this issue; most of the rest of the Anglophone common law countries have much more defendant-friendly laws in place. Their democracies have all muddled through with the laws in place.
Now, to be clear, I'd much rather have the rest of the world move toward us than us move toward the rest of the world, and would rather read (and write) in a nation governed by our First Amendment than British libel law. But I read a lot of newspapers while I was in London a couple weeks back, and I don't recall seeing much diminution in the quality, quantity, or ferocity of political speech there.
I have no suggestions, and I'm not really too afraid for our culture if we were to be subject to the laws of modern Germany or England. I wouldn't like that, but they aren't such terrible places.
I'm more concerned of the likes of places like China, Cuba, Russia, etc., calling the shots.
Jeez I am sorry. I read the above language as saying that there are efforts by people to create an international law norm. I do not read that language as saying there is an international law norm in existence. The cases cited are all cases of foreign law. I would be grateful for someone to indicate treaty or customary international law rules that are international law that form the content of international hate speech law. Otherwise, that is a red herring.
As to why we are bound by international law, this is a long discussion. There are always nationalists who say they are not bound by international law. They operate in dictatorships, democracies, monarchies etc and they go about betting they can make the world comply with their will.
And when the world resists what they are doing, they wonder why they are having such a difficult time of it. It is called horizontal enforcement by states of the obligations of customary international law and treaty.
Sure we can breach those rules as a nation and try to make the bet that we will get away with it. Just like every other nation in the world can try to do that.
Look at the torture stuff. Torture is a violation of both treaty and customary international law obligations. It is incorporated into U.S. domestic law. Cases are being brought under international law all the time to address torture in the US in civil claims (Alien Torts Claims Act, All the detainee stuff) and criminal overseas (German, French, Argentinian, Swedish and other cases against Rumsfeld and others regarding extraordinary renditions) asserting the applicability of international law obligations. Back a norm with the power of a sovereign state and you see some leaders quake in their boots. Read Jack Goldsmith's Terror Presidency about the palpable fear of the high-level civilians about what they were putting in place and doing. Yeah, international law is real.
We are so powerful that our CIA destroys the tapes of an interrogation (like some crack dealers flushing crack down a toilet to make the evidence disappear) because they are afraid of legal jeopardy and the effect those tapes will have on world opinion of us and thus of the United States ability to do what it needs to do in the world. That's not me saying that, that is the head of the CIA saying that on December 6.
People drink the kool-aid of international law not being binding. They think there is no downside - it's over there not here. International law is part of United States law and so that powerful state can apply that law in its borders as well as in the international plane.
Of course, if one thinks that all international legal obligations are meaningless and we are in a state of anarchy where it is all about power, then of course the world will look that way to you. There is too much evidence to the contrary - for example in international commercial arbitration and compliance with the enforcement of foreign arbitral awards and in the law of the sea just to take two areas.
Best,
Ben
As for defamation, possible solutions might include:
(1)...
(2) Treaties requiring that subject matter jurisdiction for defamation be limited to courts in the nation where the material was published.
"Where the material was published" is the problem since "published," at least for purposes of libel law, can be a world away from where the material was authored or otherwise created; and where it was printed or otherwise put into the form in which it will come to the attention of others. As well, it may be "published" far from where the original "publisher" is located, sometimes in places and in ways that the original "publisher" has little or no control over. So your treaty might need a different answer to "where the material was published" than the current
one(s) if it were to have any effect.
Statutes precluding execution in the US of international defamation judgments absent bilateral or multilateral treaty
The few cases cited above by others have been those wherein execution of such judgments has been denied under existing state law. Do you or others know of any instances in which a party has been able to execute here in the US a defamation judgment obtained somewhere abroad? (As I understand it, Ehrenfeld went to the Second Circuit not so much to prevent the Saudi from collecting anything from her or her publishers here in the US, since that would be very unlikely to ever happen, but rather as a counterstrike to bring him into a US court and mix it up with him here.)
Government programs that defend defend plaintiffs in courts of nations certified to have defanation standard that do not meet US criteria.
We do have programs to provide American businesses operating in certain parts of the world with risk coverage. The government's interest, that is ours collectively, is to encourage American businesses generally for our own economic benefit and in those particular countries for both economic and geostrategic reasons. A part from the question of how a program of the sort you suggest would ever work, why would the US government undertake to do this on behalf of Americans who might encounter problems with defamation law in other countries? Wouldn't it make as much (or little) sense to have the government provide all of us with travelers luggage to cover all of our risk (lost luggage, illness, problems with common carriers, etc.) rather than force us to buy such insurance for ourselves?
Government programs that reimburse parties against whom such judgments have been enforced in foreign nations. The last two will run against the libertarian grain of some.
Not only would it "run against the libertarian grain of some," it would run against grains of all sorts and ideologic types of most. (Again, how about reimbursement for the loss of luggage when traveling outside the US? I expect I could come up with just as strong a justification for a program to take care of lost luggage as you could for the program you suggest to protect us against foreign libel judgments. [And what about when the American "publisher" unarguably "published" in the foreign country and libeled whether the foreign law or American law were applied?]
Mr. McCarthy's solution of statutorily enacting a cause of action against plaintiffs in other nations.
While this appeals to me for a variety of reasons, I'm not clear how it would work and a great many problems would be overcome. And if it was met with mirroring statutory enactments abroad, might we not see some really wild and not so happy results?
I think the problem for which we are seeking solutions is as much or more about the "chill" the lawsuits abroad can produce here as it is about the actual "sting" (payment of damages), which may never happen.
The above is a great idea from someone who gets it!
It is on the internet that the risks are great for self-censorship because of the risk of foreign law. This is a problem of multiple potential jurisdictions and the question of whether we get the race to the bottom by those who can be touched in multiple jurisdictions or at least in one jurisdiction that is a killer.
The geometry of the interactions (are you a website, or are you selling something into the given country) with the sovereign states is being varied everyday. So each sovereign comes to terms with what it will do. No one once to kill the internet but every state wants to make sure the net helps its elites and does not hurt its elites. So netizens (as we use to be called) need to pressure our elites to keep the internet a more open space and make states carve out spaces where they do not exercise abusive control. So that means talking back to China and others.
We should also ask our government to have the cojones to do that. If we just cave to corporate interests, the corporate interests do not give a hoot about anything but money. One way to align incentives is on China.
Everyone wants to get in to China, so corporations enable human rights violations by the Chinese state in the name of the all-mighty dollar (well OK euro). So what is to be done? We should expand the Alien Tort Claims Statute so that foreigners can sue in our country for the acts of those corporations done abroad to violate international law as part of being a good local citizen in that foreign country. Raise the cost for those companies of their effort at pleasing all sovereigns.
We could also push China to change as part of this strategy but good luck with changing a 5000 year-old civilization. Easier to bend a few brains at Google.
Best,
Ben
Best,
Ben
And if you think those English newspapers are so wonderful, feel free to read and rely on them. I've always thought them amazingly bad, though undoubtedly more on account of commercial reasons than the state of libel law in those parts.
It's the wet dream of American business to be government regulated, co-opt the regulatory agency and use the state's power to control the market.
Regarding the US incursion into Panama, you might recall Panama had declared war on the US. I would say sending combat troops to Panama was an appropriate response.
http://en.wikipedia.org/wiki/Operation_Just_Cause
Regards,
DonR
Yep, and the dream of politicians to make them beholden to them for creating that regulation.
And through this usurpation of power by the government through the businesses, we lose. On an international scale, we lose big time and in the worst ways.
It's not global businesses we have to fear. That is a good thing. It's the government controlling business, usually at the request of the biggest in the business, where we lose.
'n case someone hasn't noticed, we live in a pronounced ideological age, one not noted for its soberness of mind but instead for its zealous and incautious motives and interests.
Steyn is right, he can defend himself, but he shouldn't have to in the first place. That he may be forced to do so is telling of a great deal.
Regardless of the actual merits of her books, this is simply not true: Fallaci didn't attack radical Islamism, she attacked all the Muslims in general.
This question of the attempt to apply America libel defences abroad is a wonderful demonstration of the limits of perception.
The suggestion is to try to impose American constitutional norms on common law, even civilian, countries, who are happy to think of themselves as just as democratic as the US -- probably more so -- and who consider themselves superior to the US in the law of defamation, precisely because their newspapers and airwaves are freer of the excesses American law allows.
Canadian and European polities have not refused to adopt principles of American libel law because they are ignorant of it; or because they are careless of legal standards in their own countries; or because they value the principle of open public discourse less than Americans do.
Its because they consider the American defamation standard is inferior, less subtle and more harmful to the ultimate, constructive ends of the free contention of ideas. They consider that American law risks debasing public debate.
We have to be aware that national legal systems collide not because of fundamental national values: Canada and some other countries refuse to extradite to the United States where the extraditee is not guaranteed that he will not be subject to capital punishment. America refuses to subscribe to the International Criminal Court which now much of the world now openly endorses. Persistent, stubborn American attempts to extra-territorially apply its own economic embargo of Cuba attracts international irritation.
There’s a simple prescription for US nationals who do not wish to run afoul of foreign restraints on defamation: obey the laws of those countries.
The ideal is called “comity.” In this world, we need a lot more of it.
Heck, we do it quite thoroughly against terrorists and I have no apology for that. But if we don't watch out, any state will be able to act against any individual the same way. We need our laws to grow faster than our technology. And do so with wisdom.
If Irving had obtained a default judgment in the UK for libel against Lipstadt, and she didn't have any money or assets in the UK, Irving would have to seek the assistance of the US courts to enforce it. As has been pointed out above, Lipstadt could then raise her 1st Amendment defenses and in all likelihood defeat any collection effort.
At most, what this suggests to me is that maybe the US should enact a further reservation to its ratification of the Hague convention on the enforcement of foreign judgments (to the extent it has not done so already) to make explicit that no US Courts will assist in the collection of any judgment against assets in the US if the judgment arose from a claim that is not cognizable under US law.
"Andy, re Roger Kimball's note on your forthcoming book and my forthcoming show trial, the most depressing part is the pre-emptive surrender. As Roger writes:
Not technically. But, if you're a publisher, who needs the hassle? Easier to do The Lindsay Lohan Guide To Celebrity Carjacking. To reprise Sir Edward Grey, "The lamps are going out all over Europe" - one distributor, one publisher, one novelist, one cartoonist, one TV host at a time."
There is already precedence for this in US law, the sanctions provisions of the Helms/Burton Act for example.
For those legitimate concerns about this leading to a tit-for-tat situation with other countries, the law could be constrained to only apply to rulings that infringe on US citizens Constitutional Rights, including the Amendments.
Amazingly the only company capable of making a Blue Angel compliant plastic was of a type owned by a German company. Smell fishy? I was working at Dell at the time and we had to change our products to use this even in US bound computers. The reason? Because the plastic hardened into a slightly different size, requiring new molds. To keep a uniform product we were essentially forced to use screwy EU standards.
But this isn't new. We've been doing that to other countries for a long time.
Do you believe that is even remotely reasonably for most individuals, or would be possible to follow these days without severely encroaching on first amendment protections in normal modern life? The sheer number of foreign laws which are quite capable of infringing normal and lawful first amendment protected speech are truly staggering, and quite possible to violate easily in forms which can be accessed across the seas or other borders.
Relax. I'm not in favor of throwing out the First or any of the other amendments. I happen to think that a blocking statute addressing this issue may not be a bad idea. (There's nothing we can, nor should, do to protect assets in foreign countries from the operation of those countries own laws.)
My point simply was that democracy has, and will, survive a variety of libel regimes different than our own.
I had a case here in which, about 30 yrs before, an Italian gun firm was asked to make guns of a specific type for an American firm, located in Connecticut. They made them, and the Conn. firm picked them up in Milan and brought them home. 30 yrs later one wound up in Arizona (how it got here was unknown. It could have been sold in some other state and brought here by a private owner) and caused an accident.
Held, Arizona has personal jurisdiction over the Italian mfr., even tho it acted in Italy, delivered in Italy, had no marketing effort in the US, let alone AZ, and for all we know the arrival of the gun in AZ was due to travel of a private owner, not anyone's marketing.
As to defamation, sure, American legislation precluding the enforcement of judgements obtained extra-territorially which would offend principled standards underlying American law of defamation – whether otherwise provident or not – fair enough, could only be appropriate as nothing more than a simple matter of comity.
On the ICC, Mr. Cooke may not have the answer.
Once again, isn’t the point of this a matter of perception?
Powerful nations, particularly America, do not seem to understand or act as though they understand that what amounts to their unilateral exercise of discretion, say, to leave the pursuit of international criminal justice to something that is nothing more than, at best, ad hoc, let alone a unilateral refusal to accept the imposition of standards of international criminal justice enforcement at all, threaten the sense of security and comfort of all of the rest of us.
What America does not seem to understand, or even weight, is that other states, which by definition, cannot compete with America in brute economic, diplomatic or military terms, suspect that the unwillingness of the US to subscribe to the same standards as they, is nothing more than America’s reservation of a right to exercise blunt and unfettered power as and when it chooses. It may even risk allegations of American, or other big-state, international “lawlessness.”
So, whether America’s failure to participate in the ICC is simply a manifestation of its unwillingness to subject its own nationals to a process that it would see imposed on other nationals or whether it is based on more subtle considerations outlined in the article linked by Mr. Cooke –the risk is the same: squandered perceptions of the legitimacy of American international conduct.
In each of these international issues, whether it be in a principled response to requests for enforcement of foreign defamation judgements trenching or in matter surrounding the International Criminal Court, perhaps the answer lies in ideals of substantive as well as procedural comity.
The answer is, as I see it, to classify human rights problems as trade barriers (in addition to their inherant wrongness). Because they do interfere with American citizens and corporations doing business abroad. Then you can deal with it on a case by case basis, keeping it in perspective with other trade barriers.
If the US and Israel were to agree to give the ICC jurisdiction over its citizens, who among them do you think the ICC might demand be brought before it? If you imagine it might be a Henry Kissinger, Donald Rumsfeld, George Bush, Israeli PM or general, etc., then you have your answer why the US and Israel in particular aren't going to agree.
But I think IS's point in the original post is that freedom is not surviving in at least some of those regimes. Democracy, by itself, is nothing much.
There, that was easy.
It may come as a surprise to learn that our legal doctrines, including First Amendment law, are not handed down by some Platonic guardians. It develops in fits and starts and sometimes goes down ways that are sensible and sometimes they are not.
Libel law developed in the US in the last half of the 20th century in a very permissive way, most notably in Times v. Sullivan because of the civil rights movement. Throughout most of the 18th and 19th centuries (and of course now in the UK and other Anglophone countries) it was much more restrictive. Somehow our democracy survived that experience, just as the British/Canadian/Australian/&tc democracies survive today.
I guess my lack of outrage comes from a sense that the UK et al. are still on the right side of the line (in the grand sweep of things), even if they are a bit closer to that line than the US is or I would like to be. Most of the proposals I've heard (including McCarthy's, which Ilya seems to like so much) seem to me like examples of hard cases making bad law. (The more I think about McCarthy's proposed solution the more absurd it seems.)
1) The plaintiff was seeking damages with respect to damage to his reputation within the state of Victoria.
2) The information was published by way of a subscription service and Dow Jones had the information available to them that some of their subscribers lived in Victoria Australia.
3) The court held that there was no practical distinction between different methods of publishing the defamatory material to a resident of Victoria Australia. The law would apply the same whether it was printed in paper, carbed in stone or delivered electronically.
If Dow Jones wanted to insulate themselves from Australian law it would have been very easy to do. All what they'd need to do would be block access to their subscription service to Australia residents. Instead they sought to make profits from marketing their product to Australians, and by doing so became subject to Australian Law. It is no different conceptually to a car manufacturer complying with different emission and safety standards around the world.
Maybe it is over which of those ways are the sensible ones, which the not so sensible; or if you prefer, which are the more desirable, which not. And let's hasten to add as a qualifier, "for each particular country," since you would agree, would you not, that though all may be democracies there are sufficient historical, cultural, and other differences between countries that a one-size-fits-all approach would probably be rejected. So then I would ask you what, if anything, you think the US should change in its libel laws, whether to bring them into closer conformity with the libel laws of other democracies or to bring them into closer conformity with your notion of the Platonic ideal.
As for NYT v Sullivan, I of course knew that what Sullivan claimed was libelous did relate to the NYT's coverage of civl rights protests in Alabama, but I did not appreciate that libel law developed in a "very permissive way...because of the civil rights movement," if that was the case. Do you think the Court's decision in NYT v Sullivan was a results-oriented one and there should be no higher hurdle for a "public figure" plaintiff to clear in order to recover for libel? (And in any event it wouldn't have mattered to the outcome of the case brought against Lipstadt if the UK had its own NYT v Sullivan, nor to the case that Mahfouz brought against Ehrenfeld, would it?)
You keep making the point that democracies have continued as democracies despite differences in the extent of their protections or circumscriptions of free speech rights. But whether a democracy with greater or lesser protections for free speech than we have here survives or fails is a pretty insensitive and not too meaningful indication if they have/had it right, isn't it?
Let those other countries have the libel laws they want for their own residents/citizens and those who "publish" in their countries. The concern is the transnational or long-arm effect that may be felt by those who are not their residents/ citizens, nor really "publish" in those other countries, but still potential defendants there. And many here are after "solutions" other than changing our libel laws to conform with those of other countries, though they too may be democracies and changes to our laws might not seriously threaten our continued survival as a democracy.
In this context, I would define "place of publication as the place where the material was printed, put into the airwaves, posted on the Internet, etc. In other words, the place where the speech/writing first left the privacy of the outhor's workploace.
No, but such a statute may save litigation costs. I would like to find a solution that would not only preclude judgments (the fear of which deters multinational companies from publication) but that would preclude expensive litigation (which I see as a worse problem-- it affects what you or I post on the Internet).
Hypothesize that the Zimbabwes and Putins of the world brought about an established international standard (accepted by 3/4 of the world's nations) that criticism of heads of state or heads of government was libel per se.
Kim Jong Il sues you in a North Korean court for calling him a kleptocrat and wins a judgment of $2,000,000. (You never showed up for trial, but the international standard is that there is personal jurisdiction over anyone, anywhere in the world for this "offense," and that ex parte judgments are legal in the failure of the defendant to show up. Remember--these guys are setting the standard.) He files this judgement in your home state, and asks execution on the basis of comity. He won't get it as things stand on a variety of grounds. Horace Gray wrote a wonderful opinion on a comity case in the 19th Cen whose nome I don't remember as I pen this-- it forms the basis of recognition of international judgments.
Do you agree with this outcome?
I would point out that most of the criticism for our putative disregard of putative international norms stems from these rules' purpose of protecting individual freedoms, not limting them.
By selective enforcement. Duh!
Well, the proof of the pudding is that David Irving lost, and that Salman Rushdie wasn't libelled for The Satanic Verses. There are always nutty lawsuits.
Otherwise, on the basis of some of the arguments expressed in this thread, the logical conclusion would seem to be that international companies should be able to disregard US law when they import to the US if their products achieve the standards of the domestic law of that country. Seeing how the argument Professor Somin and others seem to be that one's own law trumps the law of the state in which one is doing business.
More sensibly, far more sensibly, would simply be to enshrine that the US government/courts can not take part in retrieving damages for speech that would be protected under the First Amendment in the US (this may or may not require a US legal case to define if the relevant speech was protected or not). Problem solved regarding the rights US citizens. Everything else is just pointless posturing and grandstanding.
You've posted an opinion here. It was perfectly legal in your jurisdiction, but not necessarily in Libelslavia. If someday you find yourself in Libelslavia you might be arrested for your opnion made twenty years earlier on an obscure blog.
The answer of course is it's only a useful hypo if the entire world goes bat-poop crazy. However, as long as we are willing to hypothesize like this, why stop at the international level? We can draw up equally implausible hypos about the entire U.S. going insane. Congress and the states could pass ridiculous constitutional amendments violating basic liberties and destroying our internal checks and balances. By the logic of 'we have to protect against everyone going crazy', every state - or even every county - should take extravagant measures at this moment, because really, there is nothing in our system to protect us in such a situation.
If you are willing to use hypos of "suppose the entire world goes crazy" you can really justify anything - no system of either substantive rights or procedural protections can stop a super-majority of insane people from imposing their will. "Comity" does not mean acquiescence in such a situation - literally forfeiting all internal protections against all causes of action to all courts in the world. It is a doctrine of courtesy for some countries over some judgments in some situations. It is a bit dishonest to claim otherwise.
Neurodoc: Of course I don’t think other countries’ laws came from Platonic Guardians. I don’t think that Platonic Forms exist, and I especially I don’t think there is a Platonic Form of libel law – that’s the entire point of my argument. Laws, like our history, are hopelessly contingent. (Although I think you overemphasize the historical and cultural differences, at least among the Anglophone common law countries. Yes, there are differences, of course, but one can easily imagine a world where the US applies the UK’s libel law, and vice versa, and my guess is that very little on the ground would change.)
To answer your question about what I would change about US libel law – not much. I might be inclined to make recovery for private plaintiffs on private matters even more difficult than it is today, and to absolutely bar recovery from public officials, but in general I don’t spend a lot of time fulminating about the great injustices in that area of the law. (Of course, I don’t spend a lot of time fulminating about the great injustices in that area of the law in the UK, either, so maybe the answer is just that I need to fulminate more.)
Re Sullivan – its sloppy to say (as I did) that changes in the law had any one cause, so mea culpa for that. (Though I’m not sure what you would say had a greater impact on the development of libel law in the 20th century.) And I don’t know what “results oriented” means – is that like “judicial activism”? (Incidentally, can anyone point out the state action in that case that triggers First Amendment scrutiny to begin with?)
Re your Sullivan-in-the-UK questions: Lipstadt’s case may have changed (US doctrine may find Irving a limited public figure for purposes of Holocaust scholarship, I don’t know), but I don’t know if the Ehrenfeld case would have changed or not. But how does your point cut? If you’re saying that the adoption of the most lenient libel case on the books would not have changed the outcome of these cases, what are you and McCarthy expecting? Congress to pass a law in effect suggesting that other countries should adopt libel rules even more speech-protective than ours?
Re your question about insensitivity – I would 1) reject the notion that there is a single “right” legal doctrine with respect to libel; and 2) respectfully suggest that the insensitivity you mention is exactly why we shouldn’t’ get worked up – and pass stupid McCarthy-like laws – over this. (The easiest way to fix this is one I’ve mentioned multiple times already – cut off the “long arm” by passing a blocking statute, which sounds like it could build quite easily off of work already done by courts.)
Two points-
1.
I agree with Lewis (sorry, Skyler). The solution to this problem is very simple- if you don't like the laws of a country, don't do business with them. If you want to do business with them, lobby the country to change it. While I believe our (current) First Am. regime is superior to other countries' defamation laws, that does not give us the right to act unilaterally. Yes, the internet is international- so, Skyler, if you spend your time defaming the leaders of Libelslavia, I would recommend against keeping my assets in that country.
2.
Re: Neurodoc. While you raise some good points, I think you might have misinterpreted the central thrust of Simon's points. Our current (incredibly liberal) 1st Am. jurisprudence in general, and defamation jurisprudence specifically, are 20th century inventions. 18th and 19th century law was not nearly as forgiving. Our democracy managed to survive. While I certainly prefer our current libel/defamation regime to other countries', and while we have a tradition of being a little more rough-hewn*, the permissive Miles Lane-esque "I'll Allow It" libel/dafamation 1st Am. is not intertwined with our long history.
*The Jefferson / Adams race was pretty nifty.
At most, I would favor clarifying via a reservation to the US' ratification of treaties on the enforcement of foreign judgments something that makes clear that a judgment on a libel or defamation suit will not be enforced if the enforcement of the judgment would be inconsistent with the First Amendment and the public policy of the United States in favor of such policies.
The article and this post really highlight to me how some in the US want the rest of the world to follow our free speech laws, and become upset when a result that is contrary to those laws results elsewhere. Now, I like our these laws too, but I am not sure we should seek to impose them on other countries, especially when the other countries are vibrant democracies, and the major difference between those countries' laws and ours lie in the burden of proof in libel cases, which to me, anyway, is hardly a gross violation of international human rights laws.
I'd be fine with a rule that the US would not enforce any such foreign judgment, but if the defendants have assets abroad, we can't do much there, can we?
Now, to continue the example in a slightly different direction there were a couple of years ago moves afoot in the European Union to come up with a EU-wide arrest warrant. I admit to having not followed the issue closely, but the prospect was raised that someone living in Britain who had never set foot in Germany could be arrested for Holocaust denial, which is not a crime in the UK. That would be wrong, imo, much like it would be wrong for the US to extradite someone to another country for a libellous offence that would have been covered by the First Amendment in the USA.
I hope it is clear the distinction I am drawing. I suppose I should say that, for the record, I am not a Holocaust denier - is just an example :) .
Also, for what it is worth I would welcome a reform of the libel laws in this country, though I wouldn't want a situation as persmissive-seeming as the USA (4-5 years reading this blog has left me a little cold on the First Amendment in practice, regardless of the ideal behind it).
Whatever the answer is, I'm not sure, but I very much doubt prudent diplomatic and similar forms of inter-national suasion, coupled with consideration of some legislative initiatives, should be considered off the table. What is being discussed in substantial part (the dissemination of formative ideas) is basic, is foundational to what needs to be accomplished in this century vis-a-vis a variety of rogue regimes.
After having to spend how much in time and legal fees?
There are two issues here.
One is comity.
The other is observation of international standards in enacting our laws and enforcing the laws of others.
I don't think it is abusrd to think that a worlld that seats the likes of Syria and Cuba on Human Rights Commissions and makes some of them chair would propagate standards that place restrictions on free speech.
The example I gave-- that you didn't repeat-- that criticism of a government head is defamatory-- would be mild by the standards of the laws of >50% of the nations of the world.
Here's my rough idea.
I.e., compensation is, by treaty, paid by governments, not by individuals. I.e., judgments subject to the treaty or treaties would NOT be enforceable against the individual or business defendants. They'd only be enforceable against the governments of the citizens or businesses named in the judgment.
Furthermore the governments may assert related counterclaims (generously defined) for misconduct by the citizens of claimant countries. I.e., we'd start with the U.S. having 9/11 counterclaims for $1 trillion for conspiracy against all foreigners associated with terrorists.
Furthermore the governments of the defendants would have standing to contest the original claims in foreign courts. I.e., if a Saudi prince sues for defamation in Britain for an American book naming him as a terrorist funder, the U.S. govt. could intervene in