Legal Commentary

The Senate yesterday passed the latest version of federal libel tourism legislation, the SPEECH ("Securing the Protection of our Enduring and Established Constitutional Heritage Act"*) Act, which now goes to the House, where passage is expected. The bill has bipartisan support in both the House and Senate, which is always a bad thing. I wrote about an version of this bill here and here; here is the Senate's 2009 version, the Free Speech Protection Act.

The version that is gong to become law makes a couple of significant changes. I still am not sure any of this necessary or a particularly good idea, but this is a dramatic improvement over earlier versions.

First, it fortunately drops the clawback provision, under which a U.S. judgment-debtor could bring a federal claim to recover the amount of the foreign judgment as damages, treble damages, and consequential damages from the foreign judgment. Clawbacks are bad policy and bad diplomacy; they also indirectly raise some troubling Petition concerns. So I am happy to see this provision go. There still is a federal cause of action for the judgment-debtor, but only for declaratory relief.

Second, it permits removal any state-court enforcement action on minimal diversity. Helpful, but not strictly necessary, since most enforcement actions at issue are bilateral claims by a foreign judgment-creditor against a U.S. judgment-debtor and already are within federal jurisdiction. The only thing that I can see it doing is eliminating the forum-defendant limitation on removal (a diversity action is not removable if any defendant resides in the forum state). So, under current law, when a Saudi judgment-creditor seeks to enforce a foreign defamation judgment against a NY judgment-debtory in NY state court, the New Yorker cannot remove; under the new law, she can. But I am not sure how applicable that is to these cases. The theory of diversity/alienage jurisdiction is that the Saudi is not going to sue a New Yorker in New York state court; he is going straight into federal court anyway.

Third, it makes foreign defamation judgments unenforceable in three situations, including one new one: 1) the foreign defamation law does not provide the same level of protection for speech as does U.S. defamation law; 2) the U.S. speaker would have been liable for defamation even under U.S. defamation law; or 3) (the new one) the exercise of personal jurisdiction by the foreign court did not comport with Due Process and the U.S. regime of personal jurisdiction. I am somewhat troubled by this as a policy matter, but I can live with it.

Fourth, it drops a potentially problematic provision that would have made the foreign judgment-creditor subject to personal jurisdiction in the United States (on anti-enforcement claim by the judgment-debtor) solely for having sued a U.S. speaker or for serving any documents related to the foreign lawsuit in the United States. I am not sure such a jurisdictional provision would have been valid. The new bill replaces this with provision for nationwide service of process, including any district in which the judgment-creditor transacts business. This still could be some due process concerns, depending on the facts of a given case.

Again, at the end of the day, I remain unconvinced that any of this is necessary. These judgments typically are never enforced in the United States, because every state has a public-policy exception to its enforcement doctrines and most recognize First Amendment concerns as part of that public policy. The federal exclamation point is nice, but ultimately more symbolic than anything else.

* Think these members of Congress remember that this enduring and established constitutional heritage includes speech attacking even our most sacred symbols, really offensive comments, anti-war protests within earshot of those who make public policy, and dirty words?