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.