Securing the Protection of our Enduring and Established Constitutional Heritage Act
Floor Speech
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Mr. COHEN. I ask unanimous consent that all Members have 5 legislative days to revise and extend their remarks and include extraneous material on the bill under consideration.
The SPEAKER pro tempore. Is there objection to the request of the gentleman from Tennessee?
There was no objection.
Mr. COHEN. Mr. Speaker, I yield myself such time as I may consume.
Earlier this Congress, I introduced, together with Congressman Darrell Issa, H.R. 2765, to protect Americans' First Amendment rights against the threat posed by libel tourism, a new term in our vocabulary. The House passed that bill by voice vote under suspension of the rules. The 110th Congress had also passed that bill in this House as well.
Last week, the Senate passed, by unanimous consent, an amended version of H.R. 2765, named the Securing the Protection of our Enduring and Established Constitutional Heritage Act, or SPEECH. We consider the Senate version today.
Libel tourism is the name given to the practice of doing an end-run around the First Amendment by suing American authors and publishers for defamation in the courts of certain foreign countries with defamation laws that don't accord the same respect to free speech values as we do. Britain is a nation that particularly is a situs for these actions.
While we generally share a proud common law legal tradition with the United Kingdom, it is also true that the United Kingdom has laws that disfavor speech critical of public officials and public figures, contrary to our own constitutional tradition. As a result, the United Kingdom has become the favorite destination for libel tourists.
British defamation laws lack the constitutionally mandated speech-protective elements of U.S. law. For example, in contrast to U.S. law, British law presumes the defendant is wrong and places the burden on the defendant to prove the truth of her allegedly defamatory statement.
This feature of British law has brought condemnation, not only from American defenders of free speech, but also from the United Nations, and even from some members of the British Parliament.
In addition to Britain's substantive defamation law, features of Britain's procedural law tend to facilitate libel tourism, especially when it comes to the exercise of personal jurisdiction over a defamation defendant.
Under their more expansive standard, British courts have been quick to take jurisdiction over an American defendant whose book, magazine or newspaper, though principally, or even exclusively, distributed in the United
States, reaches even just a handful of readers in the United Kingdom, or whose Internet site, though based in the United States, is visited by someone in the UK.
Particular concerns have been raised that, as a result of British courts' expansive exercise of jurisdiction in libel cases, the Internet has rendered American authors and publishers especially vulnerable to libel suits in Britain.
As one commentator has described the situation: ``In the Internet age, the British libel laws can bite you no matter where you live.''
The Senate amendment to H.R. 2765 builds on the version of my bill that passed the House earlier this Congress, maintaining its core elements. Like the original bill, the Senate language prohibits U.S. courts from recognizing or enforcing foreign defamation judgments that are inconsistent with the First Amendment or do not comport with our due process requirements.
The Senate language also continues to prohibit the enforcement of a foreign defamation judgment against an interactive computer service if the claim of the party opposing enforcement in the judgment is inconsistent with section 230 of the Communications Act of 1934.
The purpose of this provision is to ensure that libel tourists do not attempt to chill speech by suing a third-party interactive computer service, rather than the actual author of the offending statement.
In such circumstances, the service provider would likely take down the allegedly offending material rather than face a lawsuit. Providing immunity removes this unhealthy incentive to take down material under improper pressure.
The Senate language enhances an existing attorneys' fee provision so that a court would now be required, absent exceptional circumstances, to award attorneys' fees to the party resisting enforcement of the foreign judgement if that party prevails. That provision was added in committee this year to put more teeth in the bill.
The purpose of the provision is to dissuade libel tourists from putting American authors and publishers through the burden and expense of defending a meritless enforcement action and to compensate authors and publishers when they are forced to do so.
The most significant change made by the Senate, which I support, is the addition of a declaratory judgment remedy for a U.S.-based author or publisher who is the target of a foreign defamation judgment.
This provision would allow the U.S.-based party against whom a foreign defamation judgment is entered to seek a declaratory judgment in Federal court, finding that the foreign judgment is repugnant to the Constitution or laws of the United States under one of the grounds listed in the bill.
The declaratory judgment remedy provides an added measure of protection for the free speech rights of American authors and publishers.
Last Thursday, The New York Times hailed the passage of this bill by the Senate, where it was sponsored by Senator Leahy, as a great move forward for First Amendment rights that are so important to our American way of life.
I thank Judiciary Committee Chairman John Conyers, Ranking Member Lamar Smith, the members of the Judiciary Committee, and the cosponsors of this bill for their support.
And I greatly thank Senators Patrick Leahy, Jeff Sessions and Arlen Specter for their longstanding and committed leadership on this issue. And I should say particularly, Senator Leahy, such a gentleman, in moving this bill forward.
I urge my colleagues to support this legislation.
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