Blown To Bits

Congress Stands Up for Free Speech

Tuesday, September 30th, 2008 by Harry Lewis

There’s plenty of reason to be angry at Congress today, but the House, at least, has gotten one right. It passed a bill, H.R. 6146, with a very simple text, once you get past the preamble and definitions:

Notwithstanding any other provision of Federal or State law, a domestic court shall not recognize or enforce a foreign judgment concerning defamation unless the domestic court determines that the foreign judgment is consistent with the first amendment to the Constitution of the United States.

This is aimed at fighting back against libel tourism, which is a product of the Internet and the globalized economy. In Blown to Bits we tell the tale of a lawsuit successfully undertaken in Australia against a magazine published in the U.S., because of an article allegedly slandering an Australian businessman, Joseph Gutnick. Australia decided that the magazine was “published in” Australia because Barrons sent the bits there — that is, you could sit in Australia at your web browser, click a few links, and the story would appear on your screen. Australia follows U.K. conventions about defamation, which are much friendlier to the plaintiff than those in the U.S. First Amendment rights to free speech are so strong in the U.S. that you have to do a lot to say something about someone for which that person could collect damages.

So the bill essentially says that even if someone wins a libel suit against you in his own country, the U.S. courts won’t help him collect the damages, unless his country has the same free speech standards as the U.S. (which few places do).

This bill doesn’t solve the problem by any means. If you’re an American guilty of libel in Saudi Arabia, maybe U.S. courts won’t enforce the Saudi court’s judgment, but you probably don’t want to plan your next vacation for Riyadh, or you’ll get arrested. More seriously, if the defendant is a corporation — Dow Jones, say, which publishes Barrons — this law can’t prevent the plaintiff’s government from seizing its assets in that country, or imprisoning its employees.

Still, it’s a start, as the New York Times correctly editorializes today.

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