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The British Threat to Free Speech:

Floyd Abrams, arguably the nation's most accomplished First Amendment lawyer, has an interesting op-ed in today's WSJ on the potential impact of British libel law on free speech in the United States.

Today, there are sharp distinctions between U.S. and English law. One difference is that under the First Amendment we provide far more protection for speech that is claimed to be libelous.

There is no need for democratic nations to agree upon such matters. The values of free speech and individual reputation are both significant, and it is not surprising that different nations would place different emphasis on each.

But a serious problem has surfaced. In recent years, English libel law has come to have a disturbing impact on the right of Americans to speak out.

England has become a choice venue for libel plaintiffs from around the world, including those who seek to intimidate critics whose works would be protected in the U.S. but might not in that country. That English libel law has increasingly been used to stifle speech about the subject of international terrorism raises the stakes still more.

The solution, according to Abrams, is legislation that would enable individuals to obtain declaratory judgments in U.S. courts that their works are protected under American law under the First Amendment, so as to prevent the enforcement of foreign libel judgments in U.S. courts. He concludes:

England should be free to choose its own libel law. But so should we. It is not too much to ask that American law should protect our people when they speak in precisely the "uninhibited, robust and wide-open" manner that the First Amendment was drafted to protect.

BruceM (mail) (www):
How about just having to sue a defendent where he/she resides, and under the law of that state/country?

If I publish a book that's legal in America, but libelous in England, make it abundantly clear that I can only be sued in America, under American law.

Even if the book is ultimately published in England, and violates English law, only the law of the country where the author resides should control. Seems simple enough, but I'm far from an expert on international law (in fact, I know practically nothing about it... though be aware I'm proposing a solution not claiming what I think the law currently is).
4.30.2008 10:48am
Al Maviva (mail):
Oh, come on M. The next thing you'll be saying, is that a German court shouldn't be able bring criminal charges brought by Belgian protestors against a U.S. president for acts allegedly committed in Iraq.

Where the hell are you getting the silly idea that jurisdiction is somehow tied to the territory where an individual resides or commits the acts in questions? Dangerous thinking like yours could undermine the whole foundation of that bulwark of liberty, international criminal courts...
4.30.2008 10:52am
adam Scales:
In general, I suspect one's enthusiasm for this proposal varies directly with one's certainty that the First Amendment, as presently interpreted, reflects the optimal balancing between rights of expression and reputation. Because I prize redress for defamation somewhat more than the "uninhibited, robust and wide-open" debate that, we are often told, we are getting in return for shutting the courthouse door on libel plaintiffs, I simply don't agree this is a problem worth solving,

Suppose, however, that it were. Would supporters of this measure be content to see individual defendants protected, while corporate defendants doing business abroad remain unprotected? If a publisher produces copies of the book in England (or merely distributes them), then I'm not sure the same concerns are implicated. Of course, thinly-capitalized subsidiaries of publishers might make it very difficult to collect foreign judgments in foreign courts. But, I assume that the domestic authors are pulled into cases not simply for their assets, but for revenge. If domestic authors are effectively unavailable because of a proposal such as this, then is there any problem leaving the publisher's foreign assets exposed?

I assume many authors are cosmopolitan people who enjoy traveling abroad. What would be the proper response to a judgment-skipping defendant who decides to holiday in London? I can think of a number of responses, but here's my question for supporters: would it seem fair, in tacit exchange for this kind of protection, to expect the libel defendant never to set foot in England again? It seems fair to me, but if one takes the view that this (universalizing U.S. 1st Amendment law) is a matter of inalienable right, then I think this would be unpalatable.

Obviously, the internet confounds the hopes for a few simple guidelines that equitably balance the rights at issue here. Personally, I don't believe mere internet publication -accessible worldwide - ought to suffice for imposing the law of any recipient nation. But, it's going to be increasingly difficult to reconcile this with a decent regard for laws of foreign countries.
4.30.2008 10:54am
Cornellian (mail):
The United States is about the last country in the world in a position to complain about the long arm jurisdiction exercised by some other country's judicial branch.
4.30.2008 11:11am
billb:
What's the (legal and practical) difference between getting a declaratory judgment ahead of time vs. waiting for the foreign plaintiff to press a US court for enforcement of their successful judgment in a foreign court? Can't the defendant make an appeal to 1st Amendment protection at either time and at similar cost?
4.30.2008 11:27am
Tim Worstall (mail) (www):
It does need sorting in some manner, but I'm really not sure how it can be done.
Much more than the books and newspapers thing, there's the Web. The legal situation is that the downloading into the browser is the act of publication (this is consistent at least, as the downloading of child pornography is defined as "creation" rather than copying).
Thus every blog post, every page on the web, is potentially subject to the British (it's actually England and Wales, as Scotland has a different legal system) libel system.
Dow Jones lost a suit (and then settled before appeal) in Australia on this very point of law. The only pwerson who could be identified in Australia who had actually read the offending piece was the bloke who was claming it libelled him. But that was enough for the Australian courts to claim jurisdiction.
It is in fact potentially worse than that. If the download into the browser is generally accepted as the point of publication, every page on the web is subject to the different and overlapping (indeed, often entirely contradictory) legal regimes of every nation on the planet.
4.30.2008 11:32am
BruceM (mail) (www):
Al: Hah!

Cornellian: True, if any sort of estoppel (especially the ideological estoppel I so often advocate) were an issue, I'd agree. But it's US citizens complaining and having the problem, not the US government which thinks it has world-wide jurisdiction.

However, as to the US citizens... the best argument against giving them First Amendment protection here is that most Americans, when asked, think the First Amendment "goes too far" and we all know there is no way in hell the First Amendment would come close to passing today. Not even close. If it were not so symbolic of freedom, it would have been amended or revoked decades ago (probably in the 1960s). It seems the only group who universally respects the first amendment is the press, and all they do is scare people with overreactive crime stories and report on Brittney's latest stretch mark.
4.30.2008 11:35am
Positroll (mail):
UNIFORM FOREIGN MONEY-JUDGMENTS RECOGNITION ACT
SECTION 4. [Grounds for Non-Recognition.]
(a) A foreign judgment is not conclusive if ...
(b) A foreign judgment need not be recognized if
(3) the cause of action on which the judgment is based is repugnant to the public policy of this state
4.30.2008 11:37am
PersonFromPorlock:
Hassan, a Moslem, emigrates from Iran to America, where he eventually becomes both a US citizen and a Christian. Iran tries him for apostasy in absentia, condemns him and presses the US for extradition. Should the US respect the decision of the Iranian court?
4.30.2008 11:40am
BruceM (mail):
PersonFromPorlock: Not Iran, no way. But if Saudi Arabia did the same thing... we'd turn him over in handcuffs.
4.30.2008 11:46am
M. Gross (mail):
There's little, as a practical matter, we can do about Britain's libel laws as US citizens, even if we were to adjust our laws, Britain could simply adjust theirs.

What we could do is refuse to enforce decisions, and such, but the accused may never be able to travel to Britain and/or the EU.
4.30.2008 11:54am
John Robinson (mail):
"The United States is about the last country in the world in a position to complain about the long arm jurisdiction exercised by some other country's judicial branch."

I can only assume that Mr. Abrams is a very large man.
4.30.2008 11:55am
MarkField (mail):

Oh, come on M. The next thing you'll be saying, is that a German court shouldn't be able bring criminal charges brought by Belgian protestors against a U.S. president for acts allegedly committed in Iraq.


Or, imagine this even more extreme example: an American tribunal will claim that it can try Pakistanis for crimes allegedly committed in Afghanistan. Talk about absurd. Once we lay this argument on 'em, the Brits'll back off for sure.
4.30.2008 11:57am
Elliot Reed (mail):
One thing that alerts my bullshitometer is this:
That English libel law has increasingly been used to stifle speech about the subject of international terrorism raises the stakes still more.
"Increasingly" is a classic weasel word—it sounds large, but all it actually means is that the number is going up, no matter how small the underlying quantity is. It's one of those words people use when they want to make something sound big even though it isn't (or they have no idea whether it is or not).
4.30.2008 12:16pm
Elliot123 (mail):
"What we could do is refuse to enforce decisions, and such, but the accused may never be able to travel to Britain and/or the EU."

Why not? Does the UK have debtors prison?
4.30.2008 12:20pm
JB:
This is precisely why we shouldn't have spent the last 7 years trampling on/ignoring other countries' sovereignty.

The scenarios brought up by Cornellian and Mark Field ought to be ridiculous. They're not, and too late we realize that giving the middle finger to an international order that works, and is designed to work, largely for our benefit, is foolish in the extreme.
4.30.2008 12:39pm
PLR:
"Increasingly" is a classic weasel word—it sounds large, but all it actually means is that the number is going up, no matter how small the underlying quantity is.

You're right, but an op ed generally needs some weaseling, diversion or selective facts in order to get in the WSJ.
4.30.2008 12:42pm
JBurgess (mail) (www):
The predicate to this article is the case of Rachel Ehrenfeld, an American academic who wrote a book identifying a Saudi, Khalid bin Mahfouz, as a financial supporter of terrorism. She's not the first, nor is she the first to lose defamation cases in the UK, or France, for that matter.

She's found no relief in US courts from a British court's judgment--assessing a modest fine in the area of $25K, but substantial lawyers' fees, in the area of $250K. US courts, most recently last month, have found no jurisdiction to rule on her plea.

Bin Mahfouz has been earnest (at least his attorneys have) in suing those claiming his terrorism involvement when those allegations have been based on his name's appearance on a list termed The Golden Chain. According to one British court:


…In my judgment the list falls well short of establishing the existence of sufficient grounds for an enquiry or investigation (note: as to whether the persons named on the Golden Chain list are associated, through funding, with Osama Bin Laden). In brief my reasons are these: the list is in manuscript; its author is unknown, as is the source of the author's information; there is nothing in the list to suggest that the individuals named have made donations, rather than that they are potential donors; the list has been dated by Mr.Brisard, the lead investigator in the Burnett case, to 1988 at which time Osama Bin Laden was engaged in resisting the Soviet incursions into Afghanistan with the approval of western governments; there is nothing to link the list to Al Qaeda; any money which was donated was apparently to be applied to fund fighters in Chechnya and Bosnia and not the atrocities which took place many years later in New York…


I've been following the case for several years at Crossroads Arabia, as well as the tension between US and British law and the problem of comity.

BTW, Mahfouz has suggsted (though not promised) that he would not seek enforcement of the UK court's decision in the US. His attorneys haven't hinted at their forgoing their fees.

And yes, she faces possible arrest if she steps foot in the UK, assuming a warrant has been issued.
4.30.2008 12:42pm
UW2L:
What does this do to freedom to travel from America to Britain, or some other jurisdiction that will enforce a British libel judgment (assuming a U.S. court won't)?
4.30.2008 12:44pm
KenB (mail):
Billb asks:
What's the (legal and practical) difference between getting a declaratory judgment ahead of time vs. waiting for the foreign plaintiff to press a US court for enforcement of their successful judgment in a foreign court? Can't the defendant make an appeal to 1st Amendment protection at either time and at similar cost?
Yes, probably so at similar cost, but what if the U.S. court ultmately determines that you lose? You're better off knowing ahead of time whether you need to defend the British action to remain secure at least in the U.S.
4.30.2008 12:57pm
Bruce:
These judgements are already unenforceable in the US. I don't see the point of having a declaratory action to declare the same thing that the court in an enforcement proceeding would.
4.30.2008 1:31pm
Blue (mail):
Gee, thanks for that link to a Saudi-loving propaganda site JBurgess.
4.30.2008 1:36pm
Cornellian (mail):
The scenarios brought up by Cornellian and Mark Field ought to be ridiculous.

I didn't bring up any scenarios in this thread, so you might have me mixed up with another commenter. Clearly every country is free to have its own libel laws and inevitably those are going to vary from one country to another (heck they even vary between states in the U.S.) so you're going to have liability in one country rather than another. In the age of the Internet this will always be an issue. Thus, it seems to me that perhaps we need some kind of multi-country treaty, analogous to a tax treaty, that in some way apportions liability in some reasonable manner so you don't get gigantic liability in the UK for an article that was basically published here but read by one guy in the UK. It would also have to lay down some ground rules for interjurisdictional recognition of judgments as we may wish to recognize some such judgments but not others. I think a treaty is the only way to go, as courts operate on a case by case basis and they're just not designed to sit down, think about the problem apart from the specifics of the case before them and come up with a complete framework for dealing with the issue.
4.30.2008 2:08pm
Nathan_M (mail):

Iran tries him for apostasy in absentia, condemns him and presses the US for extradition. Should the US respect the decision of the Iranian court?

There is a general common law rule that courts will not help enforce the rulings of foreign courts which are penal in nature. So there is no question that the US would refuse to help enforce this order, even leaving aside public policy grounds.


JBurgess And yes, she faces possible arrest if she steps foot in the UK, assuming a warrant has been issued.

That's true in a way, but it overlooks the fact that a UK court won't issue a warrant for someone because of an unpaid civil judgement. So unless there are other facts, there's no way Ms. Ehrenfeld faces arrest in the UK.
4.30.2008 2:31pm
Nathan_M (mail):
PersonFromPorlock - sorry, I misread your question and missed the bit about extradition. A general rule for extradition is that the act the person is accused of must be a crime in the jurisdiction he is to be extradited from. So against the US would not extradite the apostate even before arriving at issues of public policy.
4.30.2008 2:34pm
EIDE_Interface (mail):
Jurisdiction doesn't matter anymore. Borders are so 20th century. We live in one global village. Didn't you get that memo?
4.30.2008 2:56pm
Hoosier:
would it seem fair, in tacit exchange for this kind of protection, to expect the libel defendant never to set foot in England again? It seems fair to me, but if one takes the view that this (universalizing U.S. 1st Amendment law) is a matter of inalienable right, then I think this would be unpalatable.

Fair? No.

Nor is it fair to claim that this is a question of "universalizing" the First Amendment. If there is a risk of legal colonialism at issue, it runs the other way: Universalizing Brit libel law. I don't hear anyone saying that your courts cannot enforce your laws in your country. What we are discussing is whether your courts should be able to compel our courts to enforce your laws in our country.

Is that clear enough?
4.30.2008 3:15pm
Cornellian (mail):
What we are discussing is whether your courts should be able to compel our courts to enforce your laws in our country.

There is a difference between "enforcing your laws in our country" and enforcing in this country a judgment validly rendered under those laws. That latter situation happens all the time in a wide range of situations having nothing to do with libel.
4.30.2008 4:37pm
Chris Bell (mail) (www):
JBurgess tells a frightening tale, but does not say that the American academic has had to pay a single dime. She might have to stay out of England, but besides that where's the beef?
4.30.2008 4:53pm
JBurgess (mail) (www):
Blue: I suggest you try reading my blog before characterizing it. You'll find far more material critical than positive, but I do note the positive that never quite makes it into the US media. In other words, I try to note that positive things do happen in the KSA, even if a lot of things aren't trending that way.

The word you're looking for is 'balanced', or perhaps 'accurate'.
4.30.2008 6:29pm
Kevin C. (mail) (www):
You may recall New York state's Libel Terrorism Protection Act (AKA Rachel's Law), which was passed unanimously last month by the state legislature. Unfortunately, it is not yet signed by Gov. Patterson, and if I understand it correctly, the end of today is the deadline.
4.30.2008 7:57pm
Gareth D.:
Elliot Reed: "The number of reported defamation cases brought by people alleged to be involved in terrorism has almost tripled since last year, reveal statistics from Sweet &Maxwell's online legal information services.

Figures drawn from Sweet &Maxwell's Lawtel &Westlaw UK services show that terrorism-related cases made up 13% of the total number of reported claims in the year to the end of May 2007. This is compared to just 4% the previous year and 6% the year before."

Full press release here: http://www.sweetandmaxwell.co.uk/pressroom/index.aspx
5.1.2008 2:09am
Bored Lawyer:
What is the law of publication in Britain?
Suppose an American author writes a supposedly libelous book in the U.S. She sells it to a publisher for publication in the U.S. in exchange for royalties.

Does she have to authorize publication abroad? What if she says nothing? What is she only authorizes publication in the U.S., then a British tourist buys a copy when visiting the U.S. and brings the copy into the U.K. when he goes home.

I confess ignorance of British law on these points.

That said, if an American author authorizes his publisher to sell the book abroad (with an expectation of greater royalties from the wider distribution), then I am unsympathetic to the argument that 1st Amendment should apply. The author (and publisher!) both intend to disseminate the work in the foreign country for profit -- and one then has to conform to the laws of the foreign country.
5.1.2008 11:50pm