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When Foreign Libel and Hate Speech Laws Threaten the Free Speech Rights of Americans:

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.

Tareeq (www):

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.


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?
12.7.2007 9:07pm
jim:
Can you comment on what legal exposure U.S. residents face under the current regime? How possible is it to simply ignore the foreign court — refuse to appear before it, refuse to abide by its judgements?

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.
12.7.2007 9:32pm
Simon (391563) (mail) (www):
Is there any precedent for creating a cause of action specifically to undo the legitimate operations of a foreign court? (Perhaps a parallel between various state here in the US?) I'm sympathetic to the complaints, but something about the remedy strikes me as quite out of place . . .

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 . . .")
12.7.2007 9:39pm
Simon (391563) (mail) (www):
to follow up on my own comment: a cause of action against a successful foreign plaintiff strikes me as problematic. What if the US just passed some sort of blocking statute?
12.7.2007 9:52pm
Daryl Herbert (www):
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.
12.7.2007 9:53pm
Stormy Dragon (mail) (www):
The problem is that when the US asserts it has the right to enforce its laws on people in other jurisdictions, it becomes very hard for us to complain about the same principle being applied in the other direction.
12.7.2007 9:56pm
jim:
Stormy: agreed. I thought it was bad enough when they detained people in the US as part of multi-leg international flights, but rendition is even worse.
12.7.2007 10:39pm
Thomas_Holsinger:
After-the-fact monetary compensation does nothing for the chilling deterrent effect foreign litigation and judgments have on Americans in this country. It deters them from going abroad.

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.
12.7.2007 11:31pm
nordsieck (mail) (www):
How would an international law norm against the defamation of religion work considering that inherent to many major religions is the idea that all other religions are false or worse?
12.7.2007 11:42pm
Benjamin Davis (mail):

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.


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
12.7.2007 11:49pm
Thomas_Holsinger:
nordsieck,

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.
12.7.2007 11:51pm
picpoule:
"Is there any precedent for creating a cause of action specifically to undo the legitimate operations of a foreign court? (Perhaps a parallel between various state here in the US?)"

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.
12.7.2007 11:53pm
neurodoc:
IIRC, Lipstadt's defense in the libel action brought by Irving was a very expensive one (~ $3M?) that her publisher (Penguin?) paid for. Under the English Rule, as the winners, they were entitled to recover their costs from Irving the cost of their defense, but he didn't have the money. Also, I believe Irving was doing it all pro se. (Sorry, I'm relying on dim recall for the moment. All I remember for certain is that the the truth-teller prevailed, while the liar and his Holocaust-denying claim lost.)

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.)
12.8.2007 12:05am
therut:
Why am I not surprised. They came for the 2nd amendment and I said nothing and even helped. Then they came for the 1st amendment and I cried for it was too late.
12.8.2007 12:07am
Paul McKaskle (mail):
While companies with assets in Britain may be subject to judgments based on English law which would not be allowed under the first amendment in the United States, citizens and businesses whose only assets are in the United States have a modicum of protection in that an American court may refuse to enforce the foreign judgment.

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).
12.8.2007 12:19am
Bruce:
According to Jack Goldsmith, Against Cyberanarchy, 65 U. Chi. L. Rev. 1199 (1998), this is a non-issue, because obviously First-Amendment-violating judgements will never be enforced by U.S. courts against defendants and assets in the U.S., and those with a presence in other countries *should* have to follow the laws where they do business. Ilya, why doesn't that solve the problem?

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?
12.8.2007 12:20am
Daryl Herbert (www):
Mr. Davis wrote: 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.

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.
12.8.2007 12:21am
Thomas_Holsinger:
Bruce,

You asked, "And what would prevent foreign countries from establishing a counter-counter-remedy?"

Superior force.
12.8.2007 12:29am
neurodoc:
Ilya, why did you say nothing under "II. What is to be Done?," about Ehrenfeld's counterattack in the Second Circuit? (Has the New York State Court of Appeals advised the Second Circuit that state law does not support Ehrenfeld?) The approach she is taking seems like a potentially effective legal one, that is provided the NY Court says it is consistent with that state's law, doesn't it?
12.8.2007 12:51am
Libertarian1 (mail):
The problem is that when the US asserts it has the right to enforce its laws on people in other jurisdictions, it becomes very hard for us to complain about the same principle being applied in the other direction.



I would think our harassment laws might qualify. Also our gender "quotas".
12.8.2007 1:22am
Elmer:
Once upon a time there was a school with a really good basketball team. Soon they defeated every other team in the area, and eventually they were the only team of any consequence in a broad swath about 3000 miles long. They maintained this dominance for several centuries, but later began to lose the very-far-away games. After more centuries of decline, the team had essentially disbanded.

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.
12.8.2007 3:31am
Frog Leg (mail):
Sounds like a clear case to invade the UK. That's what we do against people that hate our freedom, right?
12.8.2007 4:40am
MDJD2B (mail):
I am certainly not expert on this, but recall from my Conflict of Laws class that nations act in various ways to obstruct classes of action that offend its public policy in important ways.

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.
12.8.2007 6:15am
PersonFromPorlock:
It occurs to me that 18 USC § 241, Conspiracy against rights:

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same....

...might have some application here, at least against anyone in the US trying to enforce an 'unconstitutional' settlement awarded in a foreign court.
12.8.2007 7:08am
Skyler (mail) (www):
MDJD2B,

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.
12.8.2007 7:32am
Simon (391563) (mail) (www):
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.

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?
12.8.2007 7:49am
Vermando (mail) (www):
Regarding the comments above about our not being bound by international law because of our superior force, of course this is true, but I think that the good gentleman making the argument meant that, if we customarily demand that others be bound by these treaties, then it is fair that we accept that we ourselves our bound.

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.
12.8.2007 7:56am
Skyler (mail) (www):
Simon, I think you have too much faith in domestic law.

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.
12.8.2007 8:21am
Skyler (mail) (www):
Vermando said,

It would seem that Penguin only had to fight the suit named because it wanted to continue to publish in the U.K.


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.
12.8.2007 8:30am
RKV (mail):
The case of "Alms for Jihad" provides a specific example of how this is working our currently. Cambridge University Press suppressed the publication of a book by two Americans due to a threatened libel action by a Saudi in a British court. Full disclosure - Robert Collins, one of the authors is an old professor of mine at UCSB. It is safer to breach a contract with your authors apparently, than it is to fight for freedom of speech.
Link
12.8.2007 8:50am
Lonetown (mail):
I wonder why we don't impose our laws on everyone else?

It seems we are bound only to the extent to which we agree to be bound.
12.8.2007 9:24am
Simon (391563) (mail) (www):
Skyler, a "McCarthy-like" law is one like the one Ilya's discussing, proposed by Andy McCarthy, to allow victimized defendants a cause of action against successful plaintiffs from a foreign jurisdiction.

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.
12.8.2007 9:41am
Skyler (mail) (www):
Simon, thanks.

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.
12.8.2007 9:59am
Buster (mail):
Pardon me, but didn't America invade a Central American country for the purpose of arresting its leader and trying him on narcotic trafficking charges in federal court? Although I have no sympathy for the Noriega's of the world, I can't help but wonder what empowers America to have this authority--other than pure might.
12.8.2007 9:59am
Benjamin Davis (mail):

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).


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
12.8.2007 10:43am
neurodoc:
MDJD2B, with all due collegial respect (and more), I think that some of your suggested solutions are non-starters.

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.
12.8.2007 10:46am
Benjamin Davis (mail):

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 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
12.8.2007 10:56am
Benjamin Davis (mail):
Sorry - synapse misfired. No one "wants" (not once).
Best,
Ben
12.8.2007 10:58am
neurodoc:
Simon (391563), I am taken aback by your suggestion that the US go along to get along where libel law is concerned, harmonizing ours with foreign law(s), no matter the consequences for our First Amendment. After the free speech provisions of our First Amendment were disposed of, what parts of our Constitution would you jettison next to eliminate possible conflicts with the legal systems of other countries. Should we have a look at state laws of various sorts with an eye to eliminating possible conflicts between them and the laws in foreign countries, e.g., bring family law here into closer accord with family law in Saudi Arabia, so that an American citizen divorcing a Saudi wouldn't draw us into conflict with the Kingdom of Saud?

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.
12.8.2007 11:09am
PersonFromPorlock:
Skyler:

But the FCC still control cable television because GHW Bush decided it should. And no one bothered to complain that I know of.

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.
12.8.2007 11:12am
David M (mail) (www):
The Thunder Run has linked to this post in the - Web Reconnaissance for 12/08/2007 A short recon of what’s out there that might draw your attention updated throughout the day…so check back often.
12.8.2007 11:19am
DonR (mail):
Buster,

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
12.8.2007 11:52am
Skyler (mail) (www):
Porlock:

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.


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.
12.8.2007 11:57am
Michael B (mail):
In a nearby thread a commenter tells us science does not need epistemological humility, an outmoded posture vis-a-vis science, apparently. By contrast, in the field of social/political commentary, legally coerced applications of "humility" are all too real, as threats, as inducements for self-censoring fear and intimidation, and as threats which can be carried out in systems of law and institutionally in general.

'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.
12.8.2007 12:11pm
Nikolay (mail):

Oriana Fallaci, the late Italian writer who wrote several books attacking radical Islamism

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.
12.8.2007 12:15pm
Michael B (mail):
Steyn's specific case, here, here. h/t Solomonia
12.8.2007 12:19pm
ruleswatch (mail):
Hey, there! Remember Comity?

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.
12.8.2007 12:26pm
Skyler (mail) (www):
ruleswatch, the point is that if you never go into these countries, you may still be held afoul of their laws and with international businesses they can get you whether you think they have jurisdiction or not. We may not allow in rem jurisdiction, but there's no reason why other countries wouldn't use it. If you have property that is accessible to another nation-state, why wouldn't they seize 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.
12.8.2007 12:48pm
Michael B (mail):
Comity is not synonymous with unthinking conformity. E.g., the ICC is a dubious enterprise on any number of levels.
12.8.2007 12:56pm
Christopher Cooke (mail):
I really think this is a non-issue, a solution in search of a problem, in most instances. The libel case described above, involving Irving's lawsuit against Lipstadt and Penguin, existed because the publisher sold books in the UK and therefore was subject to UK libel law. The publisher (Penguin) and not the author, was the only party really subject to a potential judgment that could be enforced (assuming she didn't have bank accounts or assets in the UK).

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.
12.8.2007 1:02pm
Bruce:
Wow, this thread seems to have produced an unusual number of good comments, and hardly any rants.
12.8.2007 1:15pm
Thomas_Holsinger:
Mark Steyn said the following today to Andy McCarthy;

"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:

Just last week I received a message from one of the entities that helps distribute our books in Canada and Britain:

Can you please let us know if there are any references to Saudis and terrorist[s] in the book. We are just concerned that this book, could potentially create libel lawsuits as it could offend Saudis living in England and this has happened with many other US publications and we do not want to be jeopardized in selling this book.

Hello? So books offensive to Saudis are verboten?

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."
12.8.2007 2:24pm
Sailfish (mail):
I very much like the idea being presented here. The EU already exercises a lot of control that work against US IP laws, the instance with forcing Microsoft to open their source code is an example of this.

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.
12.8.2007 2:37pm
neurodoc:
Christopher Cooke, Penguin does indeed have a real presence in the UK, not just a nominal one if any, and did publish and sell the Lipstadt book there, opening itself and her to a libel lawsuit in a UK court subject to UK law. But what about the Ehrenfeld case, which McCarthy focuses on, and others like it? "Tenuous" would overstate the author's and publisher's UK connection, since she does not reside or work in the UK, her book was published here in the States, not there in the UK, and the book might not even have been made available for sale in the UK except via the Internet. Don't you think there is a problem, one calling out for a solution, in cases like Dr. Ehrenfeld's?
12.8.2007 2:49pm
Skyler (mail) (www):
The EU has been wielding power for quite a while. Blue angel plastics were declared by the EU to be the only type of plastic allowed in computer manufacturing, supposedly because it did not release halogens when it was burned.

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.
12.8.2007 2:50pm
neurodoc:
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.
I only glanced at her book and don't recall the specifics clearly. I think, though, that but for the advent of radical Islamism, and the ever greater menace it represents for the West and enlightenment everywhere, Ms. Fallaci might have had nothing to say about Islam, or at least nothing nearly so hostile to the religion and its adherents. (Years before her, and well before 9/11, the nobelist VS Naipul did quite a number on Muslims in Among the Believers.) In any event, here in the US we don't favor actions for "group" libel, quite rightly so I think.
12.8.2007 3:00pm
gattsuru (mail) (www):
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.


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.
12.8.2007 3:03pm
Simon (391563) (mail) (www):
Neurodoc-

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.
12.8.2007 3:19pm
Dave Hardy (mail) (www):
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.

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.
12.8.2007 3:25pm
ruleswatch (mail):
I believe that Mr. Cooke has the answer, ...on defamation. Risking the integrity of this line of discussion however, on the ICC, with respect, he may not.

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.
12.8.2007 3:57pm
Gregory Conen (mail):
It's more than just libel/defamation laws. Any country that uses force of law to infringe (in our view) civil rights causes this problem. The google.cn issue is a case in point.

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.
12.8.2007 4:01pm
Joel Rosenberg (mail) (www):
I'm sure Lipstadt would have won in the US, but I'm not sure it wouldn't have gotten to court. See http://www.holocaust-history.org/irvings-war/ ; I'm not sure that Yale Edeiken's analysis was right, but I do think it's worth thinking about.
12.8.2007 5:38pm
WC:
I agree that special legislation protecting constitutional rights may be warranted; however, the problem is not just the plaintiff. The problem originates with the jurist. Civil and criminal sactions against the jurist in the US should be a part of any such act.
12.8.2007 6:04pm
neurodoc:
Simon (391563), you asked, non-rhetorically I thought, "Should we really care if our libel law gets more restrictive?" And though you then said "(t)he First Amendment proto-scholar in (you) shudders at the thought," the balance of your remarks suggested that you wouldn't be all that bothered if they were to get "more restrictive." I don't expect that every First Amendment scholar is an absolutist with respect to free speech like the late Justice Douglas, still for one who professes to be be "First Amendment proto-scholar" (whatever that may be), you seem remarkably sanguine about "more restrictive" libel laws here, even if you add that you would prefer that others move closer to us with respect to their libel laws than that we move closer to them in that respect. (But then you think English newspapers are pretty good and I think they are pretty crappy, even with the cheesecake some serve up as part of their daily fare.)
12.8.2007 6:20pm
neurodoc:
Powerful nations, particularly America, do not seem to understand or act as though they understand that... 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.
Some powerful, less powerful, and not so powerful nations do not seem to understand or act as though they understand that attempts or threats to haul current and former American and Israeli officials and military officers into the courts of their countries, often at the behest of the least responsible members of the international community, to put them on trial as war criminals or human rights abusers, have made many deeply suspicious of efforts to establish an ICC. Make mention of the United Nations, and there is even greater wariness. But that is not the same as saying there is a "unilateral refusal to accept the imposition of standards of international criminal justice enforcement at all," especially since the ICC is supposed to have jursidiction only when the accused's own country declines to act on credible evidence of serious wrongoing where fundamental human rights are concerned.

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.
12.8.2007 6:43pm
PersonFromPorlock:
Simon (391563):

My point simply was that democracy has, and will, survive a variety of libel regimes different than our own.

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.
12.8.2007 9:02pm
Floridan:
Let's just shortcut the whole issue and declare that every nation must abide by American law.

There, that was easy.
12.8.2007 9:41pm
Simon (391563) (mail) (www):
Neurodoc-

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.)
12.8.2007 9:51pm
JPaulG (mail):
Since the Australian case of Gutnik has been mentioned, I should point out some of the Salient facts that were instrumental in the Australian High Court's decision.

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.
12.8.2007 10:05pm
neurodoc:
Simon 391563, I was well aware "that our legal doctrines, including First Amendment law, are not handed down by some Platonic guardians." And I trust you are well aware the legal doctrines of other democracies, including those pertaining to freedom of speech, are not handed down by some Platonic guardians either. Furthermore, we agree that those legal doctrines, including ones pertaining to freedom of speech, can develop here and there in fits and starts, sometimes going down ways that may strike us sensible, sometimes not. So what do we disagree about?

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.
12.9.2007 12:11am
Elmer:
In the States I only hear of nutty British libel cases. My question: Can anyone win one of these suits, or are the courts selective? For example, if it's libelous to publish a book that some Muslims don't like, is it libeleous to publish tracts portraying Jews as responsible for everything from 9-11 to hangnails?
12.9.2007 1:11am
Elmer:
Dang. The draft went and posted itself. All I really want to know is if anyone has been found guilty of libel against Christianity or Judaism in recent years.
12.9.2007 1:13am
MDJD2B (mail):

"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


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.


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?


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).
12.9.2007 7:27am
MDJD2B (mail):

The ideal is called “comity.” In this world, we need a lot more of it.


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.
12.9.2007 7:37am
markm (mail):

nordsieck (mail) (www):
How would an international law norm against the defamation of religion work considering that inherent to many major religions is the idea that all other religions are false or worse?

By selective enforcement. Duh!
12.9.2007 9:24am
Lewis Maskell (mail):
Elmer

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.
12.9.2007 10:21am
Lewis Maskell (mail):
Also, more generally, it seems to me a fairly obvious point that if you wish to do business in a country you should either obey that country's laws. If those laws are unpalatable (say, free speech restrictions in China) then you make a decision either to cease doing business in that country, or decide that the business interests are more important than your principles.

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.
12.9.2007 10:27am
Skyler (mail) (www):
Lewis, the sticking point is that with the internet and international business, it will become harder and harder to not do business or have contacts in other nations. This blog is on the internet which is everywhere in the world. It has advertising. Thus it is doing business in every two bit flea hole of a country that has an internet connection.

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.
12.9.2007 10:38am
Vermando (mail) (www):
Imagine that 3/4 of the world adopts the standard of Kim Jong Il, and then imagine that, because someone suggests we need a bit more comity in this world, we extend the "courtesy" to North Korea of enforcing it? What? When in God's name would comity extend to such a situation - recognition of a judgment in an illegitimate court lacking due process over a cause of action that violates the Constitution and all basic principles of liberty?

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.
12.9.2007 11:43am
Simon (391563) (mail) (www):
PersonfromPorlock: the diminution of freedom caused by restrictive libel laws is unfortunate, but, in the grand scheme of things, pretty marginal.

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.)
12.9.2007 11:53am
loki13 (mail):
Good thread.

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.
12.9.2007 12:00pm
Christopher Cooke (mail):
Neurodoc: The case about Ehrenfeld illustrates my point that this is more of a solution in search of a problem. The Saudi plaintiff obtained a judgment against her in the UK, but did not seek to collect on it, after (maybe) purchasing her books there to obtain jurisdiction in the UK for the libel suit. But, he didn't try to collect in the US. Rather, her publisher sued in NY to have that judgment declared unenforceable. My points are (1) how does the existence of an unenforceable UK judgment chill the author's free speech in the US? I don't see it, but perhaps there is some slight effect and (2) why should we be concerned that someone's speech, in another country, may be more muted than it will be here? Regarding the UK court's exercise of jurisdiction, and whether it was based on a flimsy premise, I guess that is up to the UK citizens to decide. If they tire of having their courts continue to be the first resort for libel plaintiffs (analogous to Mississippi courts for some tort plaintiffs in the US), I am confident that they have the political ability to change. Likewise, if the UK citizens want to read books such as those by Dr. Ehrenfeld, and fear that their libel laws are precluding them from having access to such books, I am sure the Parliament would respond quickly to enact the appropriate legislature.

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.
12.9.2007 12:45pm
frankcross (mail):
I don't see any remedy against use of foreign libel laws. Given the counter-counter remedy. A foreign nation could simply require the US defendant to disgorge what it obtained from the foreign plaintiff under US law. Thomas Holsinger's answer of "superior force" calls for an invasion of the UK. I don't think that's a good plan.

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?
12.9.2007 4:21pm
Lewis Maskell (mail):
Skyler, let us go along a hypothetical example that might occur. Say I wrote an opinion, either here or somewhere else on the internet (a forum perhaps) setting out a theory of Holocaust denial. Were I to be arguing that, I should know better than to travel to, for example, Germany, where they have laws against such things. Presuming that the website where I expressed that opinion was readable in Germany, I will be liable to be arrested.

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).
12.9.2007 6:26pm
Michael B (mail):
Christopher Cooke and others make some superb points against the ideas promoted by McCarthy. I'm persuaded we shouldn't mount a too aggressive campaign to counter, in effect, foreign based encroachments upon our 1st amendment guarantees. Otoh this is not the 19th or even the 20th century, it's the opening of the 21st century with all its challenges ahead. Hence, prudently conceived, foresight is warranted and it behooves us to emphasize the obvious, that it is in fact a dynamic atmosphere and not one defined by stasis and discrete sovereign entities, too simply or too naively conceived - e.g., absent considerations of practical, real-world, technology based dynamics which, essentially, know no sovereign boundaries.

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.
12.9.2007 6:51pm
MDJD2B (mail):

Well, the proof of the pudding is that David Irving lost


After having to spend how much in time and legal fees?
12.9.2007 7:07pm
MDJD2B (mail):

"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.


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.
12.9.2007 7:15pm
Thomas_Holsinger:
No amount of fussing with American laws will make a bit of difference to the chilling deterrent effect of libel tourism abroad. The only possible solution is diplomatic and is rather simple, with roots going back to the property loss settlements following the treaties which ended the Revolutionary War.

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 the defamation suit to prove that the prince is in fact a terrorist funder. And, whether or not the U.S. govt. does so in Britain, it could sue the dude in America (here Congressional legislation would be needed to preserve secrecy), get a judgment and use that as an offset against any judgment he might obtain abroad.

Only certain types of claims would be subjected to this process, specifically personal injury damages plus business damages related to business reputation, all involving citizens or busineses of one country suing for damages against individuals and businesses of another country in the courts of third countries.. But offsets could be claimed for any damages claimed by the governments of the defendants against the plaintiffs for any wrongdoing.

I.e., a Muslim citizen of Britain would not be subject to such a treaty if he sues in a British court. A Saudi citizen residing in Britain would be subject to the treaty's claims procedure.

I repeat, though, the solution MUST be diplomatic.
12.9.2007 8:11pm
Thomas_Holsinger:
frankcross,

You don't understand. We use force against the foreigners who engage in libel tourism in Britain, not against the British. And against the governments of the plaintiffs. If we start seizing Saudi assets to pay the judgments obtained by Saudi citizens suing Americans in Britain, the problem would go away real fast.

But I said that I prefer a diplomatic solution. The basis of all diplomacy is fear of the consequences of not engaging in diplomacy.
12.9.2007 8:18pm
Lewis Maskell (mail):
MDJD2B: "After having to spend how much in time and legal fees?"

The price of justice.

It is an unhappy fact that, in both the USA and the UK, one has to pay for justice. A simple equation: the more money you have, the betters lawyers one can afford, the more likely you are to achieve the result you hope to obtain. I certainly wish it were otherwise, but that is the way it is. When money does not grease the justice mill, then I would have sympathy for that complaint. Especially considering that Lipstadt and Penguin are/were far better able to raise the funds than many who find themselves embroiled in the justice system.
12.9.2007 9:00pm
frankcross (mail):
I think you'll find, Thomas Holsinger, that the libel suits will be filed by British citizens in Britain. There are plenty of British Muslims who would happily serve as plaintiffs.

And I don't think you've thought through the implications of holding governments liable for the actions of their citizens abroad.
12.9.2007 9:02pm
Thomas_Holsinger:
frankcross,

You are being silly. You want me to disprove a negative. Try use of a non-abstract hypothetical.

Consider what happens in federal court when loonies file suit against foreigners for making them hear the complete speeches of Ross Perot through fillings in their teeth. I doubt the British courts would be any more willing to let British loons sue Americans who have never even heard of the British loons for allegedly thinking mean thoughts about them.
12.9.2007 9:22pm
Thomas_Holsinger:
Oh, and Mr. Cross, it depends on what you mean by "actions of their citizens abroad". Right now it means that Americans publishing books in the U.S. which are not published abroad, but can be special-ordered.

Like I said, you should be more specific.

And you carefully ignored my comment about counter-claims and offsets. Perhaps because it utterly refutes your objections. That is always dreadfully inconvenient for facile polemicists.
12.9.2007 9:26pm
Michael B (mail):
"The price of justice."

The price paid is for purposes of gaining access to and applying the law. Obviously, that's no mere cynicism as it directly reflects the extortion racket McCarthy addresses. That it's properly conceived as an extortion racket reflects but one of the rationales as to why legislation, conceivably at least, remains a viable option.
12.9.2007 9:44pm
neurodoc:
MDJD2B: "After having to spend how much in time and legal fees?"
Lewis Maskell: The price of justice.

For the time and legal fees, to say nothing of other unpleasantness, the Ds should have been made whole, at least for the legal fees and costs by the P under the English Rule, which requires the loser in a civil action to pay the D for those. But because Irving was effectively judgment proof, that the Ds had the English Rule mattered not. They might as well have had the American Rule, which of course would have meant the prevailing side (the Ds, Lipstad and her publisher) never could have hoped to recover.

MDJD2B, you propose as a possible solution for the problem under discussion (which some deny is a "problem") "treaties" that 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." But isn't that in effect just saying let's see if we can't get other countries to agree to leave those who "launch" from here subject to our own libel laws, and there is little reason to believe they would agree. (A treaty with a provision something like "what happens in Vegas stays in Vegas," though those putatively libelous books, magazines, Internet delivered subscription material, etc. may wind up far from Vegas, that is where they and their laws control.)

Simon 391563, I only alluded to McCarthy's article for what was there about the Ehrenfeld v Mahfouz matter, I wasn't commenting the merits of any "solution" put forward by McCarthy. It seems that we do have a different take on some matters (e.g., the quality of British newspapers), but nothing that strikes me as radical differences of opinion on this topic. I do reject your "can democracy survive" test, which implies that if democracy can survive whatever is in question, then there is no good reason to be greatly concerned or agitated about it.
12.9.2007 9:59pm
frankcross (mail):
Thomas Holsinger, I have no idea what you are talking about. I didn't even remotely ask you to prove a negative. I suggested:

(a) Muslims could find British natives to bring these suits. Did you respond to that?

(b) We don't want to hold governments liable for their citizens litigation. Consider this hypothetical. US company sues a foreign government for a taking of property. If it wins, the government recoups its losses from the US government. Pretty sweet deal, any government would love that. Or maybe, US company sues German company for fraud. German state seizes any winnings, though, from the US government. Good way for foreign governments to reduce taxes.

I didn't mean to ignore your argument about counterclaims, I just found it meaningless. If the government has good counterclaims, they shouldn't wait for a lawsuit, they should bring them as direct claims. And again this involves a conflation of the government with the citizen.
12.9.2007 10:47pm
Elmer:

The price of justice.


The price of justice is a lot higher when judges don't use judgement against frivolous suits.
12.10.2007 3:30am
MDJD2B (mail):

But isn't that in effect just saying let's see if we can't get other countries to agree to leave those who "launch" from here subject to our own libel laws, and there is little reason to believe they would agree.


It's something to bargain for. Like we can trade punitive damages for libel, for example.
12.10.2007 6:49am
K Parker (mail):
frankcross,
(a) Muslims could find British natives to bring these suits.
Not in the case where its a Saudi national who claims he's being defamed.
12.10.2007 6:57pm