Legal Commentary

Yesterday, I wrote about the personal-jurisdiction issues with the Free Speech Protection Act of 2008, proposed federal legislation that would create a cause of action to stop U.S. enforcement of a foreign defamation judgment where the speech at issue would be protected from liability by the First Amendment. The bills provide for personal jurisdiction in the United States based solely on a foreign individual filing a foreign defamation action against a U.S. resident, an effort to get around the jurisdictional problems that past U.S. persons have had trying to avoid U.S. enforcement of foreign judgments.

The innovative substantive development in the federal legislation is to allow plaintiffs under the new law (defamation defendants in the foreign action) to seek not only declaratory and injunctive relief from domestic enforcement of the foreign judgment (which they could do under current law), but also to seek damages. First, the bill establishes a classic "clawback" provision, under which the U.S. person can recover damages in the amount of the foreign judgment and costs and fees incurred in defending it. Second, it allows for damages for harms suffered as a result of the adverse judgment, such as lost opportunities to publish. Third, and most dramatically, the bill provides for an award of treble damages if the jury determines "by a preponderance of the evidence that the person or entity bringing the foreign lawsuit at issue intentionally engaged in a scheme to suppress rights under the first amendment to the Constitution of the United States by discouraging publishers or other media not to publish."

Now, I am pretty close to a First Amendment absolutist. And I think English defamation law (and much European free-speech law generally) is too pro-plaintiff and chilling of free speech. But I have some problems with this legislation.

First, clawback provisions are generally problematic. The essence of the claim is that the substantive law of Jurisdiction A makes it a civil wrong that the substantive law of Jurisdiction B makes some conduct actionable. And Jurisdiction A guarantees as a remedy whatever an individual was found liable for as a tortious act under the law of Jurisdiction B. It also shows some amount of disrespect for the law of other sovereign nations--not only will we not recognize your judgments, but we will make your judgments into actionable wrongs, because of our disagreement with your substantive law. Much has been made in Congress, in the courts, and in the scholarly discussion about how foreign law must not be allowed to interfere with U.S. domestic law. But a clawback provision does something very similar--it tries to influence foreign law by essentially making foreign law civilly actionable as a matter of U.S. domestic law.

Second, it is recognized that filing a civil action is protected to some degree under the First Amendment's Petition Clause. The damages provision undermines that right, by making the foreign plaintiff liable for pursuing remedies that relevant substantive law makes available. This is admittedly indirect; I am not sure that the right to petition for redress of grievances includes foreign persons petitioning foreign governments (courts). But there is something fundamental about the ability pursue civil litigation that should not form the basis for civil liability.

Third, the treble damages provision, which allows for treble damages if the foreign plaintiff "intentionally engaged in a scheme to suppress rights under the first amendment," is particularly problematic. But another way to describe a person engaging in a "scheme to suppress rights" is a person availing himself of the substantive defamation law of a forum. After all, the goal of all defamation law is to get the defendant to stop publishing statements that harm the plaintiff's reputation. And a smart plaintiff will choose the forum with more-favorable substantive law. Thus, the goal of all defamation law can, at some level, be understood as a scheme to suppress First Amendment rights, particularly where the plaintiff seeks out a foreign forum with substantive defamation law that is less speech-protective than the First Amendment regime. So this language either is meaningless or it arguably covers any situation in which a foreign plaintiff goes into a foreign forum (rather than a U.S. forum) on a claim that is meritorious under foreign law but would fail under the First Amendment. Perhaps the bill aims only at those who use foreign law for something like SLAPP suits--but the language seems broader than that.

Fourth, the bill is arguably under-inclusive. If Congress is truly concerned with the chilling effect that less-speech-protective Europe law has on U.S. speech, it should not stop with defamation law, but should provide protection from all European laws that potentially abridge expression that would be protected under the First Amendment. Consider Yahoo! v. LICRA, the Ninth Circuit case dealing with the enforceability of First-Amendment violative foreign judgments. Yahoo! was sued in France not for defamation, but for providing access to Nazi paraphernalia and other materials (such as Mein Kampf) that violated the more-speech-restrictive French hate speech laws, but that would be protected by the First Amendment. If the idea of the federal cause of action is to protect U.S. speakers from foreign judgments imposed for protected speech in the United States, Yahoo! needs the insulation of a damages claim just as much as a defamation defendant. So, too, might a future domestic publisher or author who runs afoul of some future European hate-speech regulation that prohibits, or example, cartoons criticizing radical Islam.

Again, none of this is to defend English defamation law or other European laws that implicate free-speech concerns. I am with many scholars in believing that much European law is too restrictive on speech and not committed to (what I view as) appropriately broad free-speech protections. But the essence of sovereignty is the power to decide the substantive legal rules to which those within its jurisdiction are bound. Federal law is free to decline to enforce the judgments of other sovereigns that are inconsistent with fundamental U.S. law. But it goes an extra, inappropriate, step to turn foreign law into a violation of U.S. law.