The Small Steps of the SPEECH Act

by Bruce Brown & Clarissa Pintado ~ Mar 19, 2014

INTRODUCTION

     It had become the go-to punch line for English lawyers attending libel conferences in the United States. Speaking at a podium or debating on a panel, asked to explain a decade of growing defamation litigation in Britain against American authors and news organizations, they would shrug their shoulders and quip, with a nod to the late, great Johnny Cash, that London had indeed turned into a "town named Sue."

     For many years, the joke was on us. Foreign libel plaintiffs had a considerable upper hand over American defendants in U.K. courts. By bringing suit in England, they could circumvent "actual malice" rules under New York Times Co. v. Sullivan and other substantive First Amendment rights. What is more, contrary to the standards in the United States, English courts were willing to assert personal jurisdiction over a defendant publisher who was not deliberately targeting a British audience.

     That jurisdictional practice had a particularly significant impact in the age of online publishing when posting news articles on a domestic website makes the material available instantaneously around the world. Lack of due process added to a lack of free speech protections and made for a lethal combination. Not only did English defamation law tilt the scales dramatically toward plaintiffs, it also encouraged individuals to bring suit in the United Kingdom even if they had tenuous ties to the forum and the defendant virtually none.

     This is the phenomenon of "libel tourism." While England was not the only problematic foreign jurisdiction, it was by far the most notorious - the "libel capital of the world" - with several high-profile cases that resulted in complete capitulation from publishers. For American media companies, the threat of libel tourism had developed into a real concern. Media defendants were settling suits abroad as U.S. enforcement uncertainties loomed.

     On the one hand, exposure to foreign defamation law seemed fair if it came about in predictable circumstances in which a publisher aimed specific content at an overseas jurisdiction. While publishing on a website is not enough, if you make a market in a foreign country, it is not unreasonable to expect that you might face foreign lawsuits applying foreign legal standards. More than de minimis hard copy circulation or substantial advertising revenues are signs of such a commercial presence.

     On the other hand, libel tourism was something different; Americans were being sued overseas on the basis of content they published for a U.S. readership. Media companies were alarmed because libel tourism was exporting the much less speech-protective norms of foreign law to American shores. If authors and journalists who were writing for local or national readers could be intimidated by legal regimes wholly alien to the Constitution, it hardly is nativist to say that the First Amendment would be eviscerated at home.

     The SPEECH Act was a measured and modest response to a significant problem that had created a tangible chilling effect on publishers in this country. Enacted in 2010, the SPEECH Act held strong against its first challenge in federal court when the Fifth Circuit opted not to enforce a default defamation judgment from Canada against a Mississippi blogger. In Trout Point Lodge v. Handshoe, the plaintiffs failed to prove the two prime elements of the SPEECH Act: that is, that Canadian defa-mation law is not as protective of free speech as U.S. law and that defend-ant would have been found liable in a Mississippi court. Handshoe had posted content on his Gulf Coast online forum linking Trout Point to a corruption scandal in Jefferson Parish, Louisiana. In its claim, Trout Point did not make sufficient assertions regarding a key element that a plaintiff must show to comport with U.S. Constitutional standards: falsity.

     Although Trout Point Lodge represents the utility of the SPEECH Act against international forum shopping, the legislation has its critics. The Professors David Anderson and Mark Rosen do not always agree with each other on what they believe is wrong with the SPEECH Act, but they are both critical of Congress's modest but important steps in this area. While this article will briefly respond to their criticisms, much credit is due to the professors for giving the legislation - and the issues behind it - some much-needed academic attention.

                    I. THE FINE LINES OF INCLUSIVITY AND SOVEREIGNTY

A. Overinclusivity
     As with most pieces of legislation, this bill was a series of compromises. Legislators were balancing several interests - U.S. values on protecting libel defendants, comity, and fairness to foreign states. Supporters considered a proposal to limit relief under the Act to true cases of libel "tourism" - where the foreign plaintiff lacked ties to the overseas forum in which he or she sued. But this idea was rejected because drafters thought that the bill should focus on how the foreign forum treated libel defendants and not distinguish between different types of foreign plaintiffs.

     Critics of the SPEECH Act argue that it is overinclusive because it applies to a broad spectrum of defendants and types of judgments. Professor Rosen suggests that the overbreadth of the phrase "United States person" is problematic because it may apply to foreign citizens and foreign corporations, but Professor Rosen does not acknowledge that First Amendment protections cover both. A lawful permanent resident of the United States who travels to another country with the intention to return does not abandon his status upon leaving for a foreign state. Journalists working under media (I) visas likewise would be afforded free speech protections while working in the United States. To carve out a citizenship exception the Act would undo precedent protecting noncitizen speech. In addition, First Amendment protections apply to publishers and other businesses, and the SPEECH Act retains such protections.

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