Constitutional Law

Can Unanimous Senate Approval of a Bill With a Lame Name Possibly Be a Good Thing?

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The SPEECH Act has all the earmarks of bad legislation, starting with the strained acronym in its name (which stands for "Securing the Protection of our Enduring and Established Constitutional Heritage"). Its chief sponsors in the Senate include Arlen Specter (D-Pa.), Chuck Schumer (D-N.Y.), and Joe Lieberman (I-Conn.). Worst of all, it passed the Senate unanimously yesterday and is expected to win easy House approval within a few days. Has anything good ever emerged from such circumstances?

Well, now something has. The SPEECH Act, aimed at discouraging "libel tourism," would let Americans block enforcement of foreign defamation judgments on First Amendment grounds. The law was championed by Israeli-American criminologist Rachel Ehrenfeld, who faced a British lawsuit by Saudi billionaire Khalid bin Mahfouz over her 2003 book Funding Evil: How Terrorism is Financed—and How to Stop It. Other writers, including Holocaust scholar Deborah Lipstadt, have likewise been grabbed by the long arm of British libel law, which is much more plaintiff-friendly than U.S. law (although that may change). The Guardian sums up the issue:

Many places, including Britain, currently have stricter libel laws than the US, leading to libel tourism, where plaintiffs search for a jurisdiction most likely to be sympathetic to their case. Some human rights campaigners and legal scholars saying the practice is used by the rich and powerful to stifle dissent and criticism. The growth of publishing on the internet has sparked fears that libel tourism will grow rapidly in coming years.

The ACLU makes the case for the SPEECH Act here (PDF).

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  1. Courts can already block enforcement of foreign judgments based on First Amendment or public policy grounds. No?

  2. Whoa, for a minute I thought the bill was against labial tourism. That was close.

    1. Keep your laws out of my labia.

      1. they’ll take your labia from my cold dead hands

        1. That would have been funnier if it had been written by, say, Robert Byrd.

          1. But I did write that.

  3. Its chief sponsors in the Senate include Arlen Specter (D-Pa.), Chuck Schumer (D-N.Y.), and Joe Lieberman (I-Conn.)

    I’m immediately suspect of this bill.

    What’s buried in the fine print? Mandatory gynecomastia for all males?

    1. That picture is FABULOUS!

    2. Is that a rape whistle?

      1. Yes, but who’d want to titty fuck him anyway? Vanity, thy name is Chuck.

      2. STEVE SMITH HAVE RAPE WHISTLE. I BLOW AND BLOW THE WHISTLE, BUT RAPE NEVER HAPPENS. WHISTLE SCARE COMPANIONS AWAY.

        1. Try having them blow it, Stevo.

          1. STEVE SMITH SO TURNED ON RIGHT NOW!

  4. The growth of publishing on the internet has sparked fears that libel tourism will grow rapidly in coming years

    There will be trials on the internet? Awesome! Will the jury be a tweet-selected chat-room? Who will be the judge? Drudge?

  5. Are pigs flying somewhere? Did Hell freeze over? Did my mortgage company lose all record of my mortgage? All that must have occurred before the unanimous passing in the Senate and large majority in the House actually creates a good bill. I would bet that could not happen.

    1. The Civil Asset Forfeiture Reform Act of 2000 passed overwhelmingly and was definitely a good bill, though not as good as it could have been, being somewhat watered down.

      1. That’s a pretty low bar you set there… “hey, they’re being somewhat less evil than they were!” Awesome!

    2. Are pigs flying somewhere?

      Yes. All over the fucking place:

      http://www.topnews.in/files/helicopter.jpg

  6. Its chief sponsors in the Senate include Arlen Specter (D-Pa.), Chuck Schumer (D-N.Y.), and Joe Lieberman (I-Conn.).

    The trifecta of worthless senators. Yet it’s good legislation.

    Look! Outside the window!

    1. My picture isn’t the stuff of fantasy.

  7. As long as it doesn’t stop me from getting a fatwa, I’m fine with it.

    1. Mohammed sucks.

      FTFM

  8. What’s buried in the fine print?

    If I understand the thing correctly, a finding of “repugnance” to the 1st Amendment is only available from a federal court (to which defendants can “remove” any foreign-defamation judgment; so they will).

    I’d bet that means that in a few years we’ll end up with UK-like libel standards, via fed precedent?until the Supremes swat them back to where they are now.

    Unless they don’t do that.
    Yay?

  9. Can someone explain why this is even necessary? If somebody sues me in a foreign court, I can just not show up…

    1. What happens when your books just don’t show up on shelves because you’ve been found guilty of libel? Without this publishers might be reluctant to print your book.

    2. It might not be that simple if you’re a publisher with overseas offices.

      1. But foreign courts won’t take this law into account. I’m not seeing what was accomplished here.

        1. would let Americans block enforcement of foreign defamation judgments on First Amendment grounds.

          I think this means that (U.S.)accounts couldn’t be attached and that extradition would be blocked for the offending party.

          1. Insert < /i > somewhere.

          2. Okay, that makes sense.

          3. Libel is a civil action not a criminal one. You don’t get extradited to face tort.

            1. No you can’t. And L erred there.

              But you can get your property attached and sold and your bank accounts seized to pay off judgments. But the only way a foreign court can enforce collection on a judgment in the US is to bring a suit in a US court for enforcement. Legal beagles present are invited to correct and expand as necessary.

              Unless I am mistaken, the law is intended to stop this from happening.

    3. If you wrote a book or article considered libel by another country, then said country could confiscate your income, via publishers, from sales.

      I think that is what this law is meant to address…might be wrong, though.

      1. Aw, fuck you nimble fingered clowns.

      2. Of course, they would still be free to refuse to enforce copyrights and royalties from the books that contain libel. Sure, a country can find you liable for libel and they might not be able to attach their judgments on your American bank accounts, but they could certainly stop you from benefiting from copyright protection in their country.

        1. They can refuse to enforce the copyright, sure, if they want to be in violation of Berne and of the terms of membership in the WTO.

    4. Unless you have assets there. Or (like many authors) sell books there. Or will ever travel there (or anywhere else their judgments are enforceable- like all of Europe in the case of a UK judgment). Or bank with an institution that has a business presence there. Or really like the idea of spending mucho dinero on lawyers to avoid extradition or enforcement of judgments brought in US courts on the basis of a foreign judgement.

      1. So, if I’m understanding you correctly, U.S. courts sometimes enforce rulings made by foreign courts, and that’s what this law aims to prevent?

      2. Unless you have assets there. Or (like many authors) sell books there. Or will ever travel there (or anywhere else their judgments are enforceable- like all of Europe in the case of a UK judgment). Or bank with an institution that has a business presence there.

        But this law won’t protect you in a foreign jurisdiction, nor will it protect your foreign assets.

        1. But this law won’t protect you in a foreign jurisdiction, nor will it protect your foreign assets.

          True.

          In fact, the country could simply revoke your copyright, and place the libelous or defamatory work in the country’s public domain.

      3. Ugh, more extradition nonsense. Libel is a civil action – a tort – not a criminal case. You do not get extradited over civil cases. You don’t go to jail over civil cases (see O.J. Simpson). I thought this was obvious.

    5. Can someone explain why this is even necessary? If somebody sues me in a foreign court, I can just not show up…

      As others have pointed out, it bars enforcement of the foreign judgment against you. There are federal laws and treaties with other countries, allowing successful plaintiffs to bring to the U.S. a judgment from a foreign court against a U.S. person and get a U.S. court to issue an order to enforce that judgment against the U.S. person.

      I haven’t read the law (channeling Congress here), but presumably, it prevents federal courts from domesticating foreign judgments in specified cases.

  10. Not that this is appropriate, frankly I don’t know, but I wanted to let those who read this blog know about a candidate I met, Stuart Bain, at a gun show in Salem VA this weekend. He’s running for congress as a libertarian in the 6th District of VA. Talked to him a little bit, and have now put my money where my mouth is. I have a place in that district, but reside outside of it. Just an aside. If it is out of place on this blog, sorry.

    1. If it is out of place on this blog, sorry.

      Have you read the comments on this blog?

      1. I don’t recall any like mine, but I may have missed them. I know that the Paul’s are mentioned quite a bit. Anyway, I just feel uncomfortable looking like I’m shilling for a candidate.

        1. A few weeks ago, someone was spoofing the script of a squirrel porn movie…

          I don’t think you can come up with anything that’s going to be “out of place”

    2. If it is out of place on this blog, sorry.

      And you should be. Off-topic comments in H&R threads are virtually unheard of. đŸ˜‰

      1. Speaking of…

        Did Sorgatz get banhammered that weekend when he was going on and on about how much he hated his mother because she kept giving him loans that he would never pay back?

        1. Nope. He posted here recently.

      2. Off topic posts might be fine if they’re funny, interesting etc. but off-topic shilling generally not appreciated.

    3. My denist is running in the republican primary to run against Barb Mikulski. I can’t support him since he’s (a) a member of one of the oligarchic parties, and (b) whishy-washy on guns.

      But a good denist.

      1. He creates quality dens? How about in-law apartments?

  11. Don’t be surprised if the House makes a meaningless amendment, so it goes to conference committee, where immigration reform (including free healthcare for illegals), and cap-and-trade is added on.

    1. Mr. Speaker, I’d like to tack on a rider to this bill. $30 million of taxpayer money to support the perverted arts.

  12. Having only read the reports of the bill, I can only take a stab at what it intends to do. I don’t see how an American law can be used to prevent a court in another country from issuing a judgment. I can see it preventing someone form domesticating that judgment here, thus protecting your assets in the US. If you think it will protect assets in another country, think again.

  13. A really good bill would be getting rid of libel laws altogether, or at least saying foreign courts have no jurisdiction whatsoever over what Americans say in America.

    Leaving it up to judges to decide which of these foreign claims to allow — meh, what “cent” said above.

  14. I think the big difference between us, on the one side, and the Canadian and the Brits on the other, is the question of malice.

    In the US, you have to show that whoever libeled you intended to do you harm, but that isn’t necessary in Canada and the UK (or so I understand).

    That means that a neutral third party can’t use a lack of malice to defend themselves. So, if I write a restaurant review on the New York Times website, and it says that “Joe’s Pub” has a rat infestation–and that isn’t true, then Joe’s Pub can’t win a suit against the New York Times for libel because the New York Times didn’t mean any harm–there was no malice on the part of the New York Times.

    In Canada or the UK, however, there’s no burden on the plaintiff to prove malice–so, theoretically, if I go to the New York Times website, for instance, and say something that isn’t true about a restaurant in London or Toronto, and it hurts that business–then that restaurant could theoretically win a judgment against the New York Times in London or Toronto… All the plaintiff has to show is that the comment was untrue and their business was harmed.

    This is one of the reasons, for instance, that websites in Canada and the UK tend to be premoderated. …where no comments are posted unless some censor reads and approves all comments first.

    Their hate speech laws are another reason. You can’t say disparaging things about First Nations or post comments that deny the holocaust, etc. in many parts of the world, and if American websites are accessible in jurisdictions where that sort of thing isn’t allowed, then a judge in Canada might, theoretically, apply Canadian law to the comment section of an American website. Nobody’s goin’ after the commenter, but they would go after media organizations with deep pockets…

    Why wouldn’t they?

    The big test cases for this sort of things haven’t happened yet in Canada and the UK, but if and when they do–it would have an enormous chilling effect on the commnentariat. Premoderation would probably become the norm at major websites.

    I think this might be a very good law.

    1. I think Britain has a much lower standard – to the point where truth is not an absolute defense like it is in the US.

      1. This is the main problem that this law intendsn to solve, IMHO.

        1. But it doesn’t seem to have any practical benefit.

      2. Correct, AFAIK.

        I understand that in Britain (the British world generally IIANM) truth is not an absolute defense. You have to prove that not only were the statements you made about X were true, but also that it was in the public interest that those things should become publicly known.

        Hence, revealing someones purely private pecadilloes and thus harming his or her reputation could very well be found to be libelous even if the claims were true.

        On the other hand if you were to to expose conspicuous pillar of the church Y for being the silent owner of a slum property with a particularly bad record for abusing its tenants you might get a favorable finding.

        1. Of course, Y would more than likely not even attempt such a suit in the US since the unfavorable publicity generated could end up doing more harm to his reputation than the original story. However as we know from the McLibel case in Blighty McDonalds did bring suit against the hippie pamphleteers and not only lost but had their reputation harmed more than if they’d just let it be.

    2. In the US, you have to show that whoever libeled you intended to do you harm

      Not true. The “actual malice” standard applies only to public figures (see NY Times v. Sullivan). Libel consists of publishing defamatory statements that are not merely opinion. Whether or not you had malicious intent when publishing the statement is irrelevant. The act of publishing the statement is all it takes. For example, you could simply have not cared whether the statement was true or not and not cared whether it hurt the person or not. But the standard for a “public figure” is different – because they are in the public eye, they unfortunately (and unfairly, IMHO) have to put up with more abuse than the typical private citizen. To successfully sue for libel, a “public figure” must show that the person making the statement did so with malice, to attempt to cause harm to the person’s reputation.

      1. I hope everyone can see the forest through those trees.

        In countries whose standards for protected speech aren’t like ours, it is possible that private individuals could seek damages from news entities beyond their borders so long as the content is visible in that country. And those kinds of awards would have a chilling effect…

        …making our comment boards more like those in places like the UK and Canada, where comments tend to be pre-moderated.

        I’m not a lawyer, in the US or Canada or the UK, but if an anonymous commenter libels a restaurant or public official on a New York Times website, as things stand presently, I think it’s pretty clear that the New York Times isn’t liable for what an anonymous commenter posts on its website.

        I’m not sure that’s true in the UK and Canada. I don’t think that test case has shown up yet, but it will. And my understanding from people who moderate such sites in Canada is that the difference between how they moderate here and there is in some way related to the America having a requirement for malice.

        Regardless, I think the only legitimate function of the federal government is protecting our rights, and this looks like an excellent example of government doing that. Just because my stupid comments are visible in the UK or Canada doesn’t mean the Reason Foundation should be liable for lawsuits won in British or Canadian courts.

        I’m sure those test cases are coming in Canada and the UK though.

  15. Is it too late to piggyback a federal anti-SLAPP law?

    ML Implode-o-meter needs some help.

  16. Finally, a bill I can support. I hope it will also protect the CEO of Facebook agaisnt Pakistan’s blasphemy charges (charges that could lead to the death penalty).

  17. Speaking of off-topic and surprisingly good laws (although Im sure accidentally in this case), Indiana cant charge the students with providing alcohol to minors in the South Bend party case.

    So, while it doesnt help all the underage athletes busted for drinking as a minor, but the law for providing alcohol to a minor only applies to under 18. Everyone at the party was at least 18. So the 21+ year old hosts get off clean.

    1. And he should get off clean. Hell, the 18 year olds shouldn’t be prevented from drinking to begin with but if they are, they should still be responsible for what they consume since they are 18.

  18. Lieberman sponsored a pro-first amendment bill? I guess hell opened an ice skating rink too.

    1. I expect Lieberman’s first amendment stance will last as long as an ice skating rink in hell.

  19. There’s probably a pro-Israel loophole in there somewhere, so that the law won’t apply to books critical of Israel.

    Or maybe they can just count on the judges to do the “right thing”.

  20. I’m just surprised McCain and Feingold voted for it.

    I guess somebody on their staff must have explained to them, slowly and with small words, that this applied only to works critical of foreign officials, and would not affect their ability to quash criticism of themselves and their buddies in Congress.

  21. It should be noted that David Irving lost his libel suit against Deborah Lipstadt in the British court.

    Lawsuit tourism is not limited to libel. The guys who wrote “Holy Blood, Holy Grail” lost their plagiarism suit against Dan Brown in an American court. So they suid in the UK, and lost, and had to pay court costs under Britain’s “loser pays” rule.

    Publicizing these cases might do more to stop lawsuit tourism than passing a law.

  22. I refuse to bow to the tyranny of threaded comments.

    Michael Ejercito said, in regard to whether this actually helps you much given that a foreign country could still lean on any bank or publisher you do with if they have a presence in the other country:
    In fact, the country could simply revoke your copyright, and place the libelous or defamatory work in the country’s public domain.

    While that would certainly hurt your ability to profit from the work, if they really believe that what you wrote is a bad thing that needs to be contained then making it easier to disseminate would seem to be counter-productive.

    Which is not to say that they wouldn’t do it anyway, but it fails the internal logic test.

    1. I refuse to bow to the tyranny of threaded comments.

      And so the fallen hero returns.

  23. Property Magazines will let property investors in weighing things that are and are not fit for their property investment.

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