Free Speech Protection Act of 2008 - Allows any U.S. person against whom a lawsuit for defamation is brought in a foreign country on the basis of the content of any speech by that person that has been published, uttered, or otherwise disseminated in the United States to bring an action in a U.S. district court against any person who, or entity which, brought the suit, if the speech at issue in the foreign lawsuit does not constitute defamation under U.S. law.
Allows the award of treble damages if it is determined by a preponderance of the evidence that the person or entity bringing the foreign lawsuit intentionally engaged in a scheme to suppress rights under the First Amendment to the Constitution by discouraging publishers or other media from publishing, or by discouraging financial supporters from employing, retaining, or supporting the research, writing, or other speech of an individual.
[Congressional Bills 110th Congress]
[From the U.S. Government Printing Office]
[S. 2977 Introduced in Senate (IS)]
110th CONGRESS
2d Session
S. 2977
To create a Federal cause of action to determine whether defamation
exists under United States law in cases in which defamation actions
have been brought in foreign courts against United States persons on
the basis of publications or speech in the United States.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
May 6, 2008
Mr. Specter (for himself and Mr. Lieberman) introduced the following
bill; which was read twice and referred to the Committee on the
Judiciary
_______________________________________________________________________
A BILL
To create a Federal cause of action to determine whether defamation
exists under United States law in cases in which defamation actions
have been brought in foreign courts against United States persons on
the basis of publications or speech in the United States.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Free Speech Protection Act of
2008''.
SEC. 2. FINDINGS.
The Congress finds the following:
(1) The freedom of speech and the press is enshrined in the
first amendment to the Constitution of the United States.
(2) Free speech, the free exchange of information, and the
free expression of ideas and opinions are essential to the
functioning of representative democracy in the United States.
(3) The free expression and publication by journalists,
academics, commentators, experts, and others of the information
they uncover and develop through research and study is
essential to the formation of sound public policy and thus to
the security of the people of the United States.
(4) The first amendment jurisprudence of the Supreme Court
of the United States, articulated in such precedents as New
York Times v. Sullivan, 376 U.S. 254 (1964), and its progeny,
reflects the fundamental value that the people of the United
States place on promoting the free exchange of ideas and
information, requiring in cases involving public figures a
demonstration of actual malice--that is, that allegedly
defamatory, libelous, or slanderous statements about public
figures are not merely false but made with knowledge of that
falsity or with reckless disregard of their truth or falsity.
(5) Some persons are obstructing the free expression rights
of United States persons, and the vital interest of the people
of the United States in receiving information on matters of
public importance, by first seeking out foreign jurisdictions
that do not provide the full extent of free-speech protection
that is fundamental in the United States and then suing United
States persons in such jurisdictions in defamation actions
based on speech uttered or published in the United States--
speech that is fully protected under first amendment
jurisprudence in the United States and the laws of the several
States and the District of Columbia.
(6) Some of these actions are intended not only to suppress
the free speech rights of journalists, academics, commentators,
experts, and other individuals but to intimidate publishers and
other organizations that might otherwise disseminate or support
the work of those individuals with the threat of prohibitive
foreign lawsuits, litigation expenses, and judgments that
provide for money damages and other speech-suppressing relief.
(7) The governments and courts of some foreign countries
have failed to curtail this practice, permitting lawsuits filed
by persons who are often not citizens of those countries, under
circumstances where there is often little or no basis for
jurisdiction over the United States persons against whom such
suits are brought.
(8) Some of the plaintiffs bringing such suits are
intentionally and strategically refraining from filing their
suits in the United States, even though the speech at issue was
published in the United States, in order to avoid the Supreme
Court's first amendment jurisprudence and frustrate the
protections it affords United States persons.
(9) The United States persons against whom such suits are
brought must consequently endure the prohibitive expense,
inconvenience, and anxiety attendant to being sued in foreign
courts for conduct that is protected under the first amendment,
or decline to answer such suits and risk the entry of costly
default judgments that may be executed in countries other than
the United States where those individuals travel or own
property.
(10) Journalists, academics, commentators, experts, and
others subjected to such suits are suffering concrete and
profound financial and professional damage for engaging in
conduct that is protected under the Constitution of the United
States and essential to informing the people of the United
States, their representatives, and other policy-makers.
(11) In turn, the people of the United States are suffering
concrete and profound harm because they, their representatives,
and other government policymakers rely on the free expression
of information, ideas, and opinions developed by responsible
journalists, academics, commentators, experts, and others for
the formulation of sound public policy, including national
security policy.
(12) The United States respects the sovereign right of
other countries to enact their own laws regarding speech, and
seeks only to protect the first amendment rights of the people
of the United States in connection with speech that occurs, in
whole or in part, in the United States.
SEC. 3. FEDERAL CAUSE OF ACTION.
(a) Cause of Action.--Any United States person against whom a
lawsuit is brought in a foreign country for defamation on the basis of
the content of any writing, utterance, or other speech by that person
that has been published, uttered, or otherwise disseminated in the
United States may bring an action in a United States district court
specified in subsection (f) against any person who, or entity which,
brought the foreign suit if the writing, utterance, or other speech at
issue in the foreign lawsuit does not constitute defamation under
United States law.
(b) Jurisdiction.--It shall be sufficient to establish jurisdiction
over the person or entity bringing a foreign lawsuit described in
subsection (a) that such person or entity has filed the lawsuit against
a United States person, or that such United States person has assets in
the United States against which the claimant in the foreign action
could execute if a judgment in the foreign lawsuit were awarded.
(c) Remedies.--
(1) Order to bar enforcement and other injunctive relief.--
In a cause of action described in subsection (a), if the court
determines that the applicable writing, utterance, or other
speech at issue in the foreign lawsuit does not constitute
defamation under United States law, the court shall order that
any foreign judgment in the foreign lawsuit in question may not
be enforced in the United States, including by any Federal,
State, or local court, and may order such other injunctive
relief that the court considers appropriate to protect the
right to free speech under the first amendment to the
Constitution of the United States.
(2) Damages.--In addition to the remedy under paragraph
(1), damages may be awarded to the United States person
bringing the action under subsection (a), based on the
following:
(A) The amount of any foreign judgment in the
applicable foreign lawsuit.
(B) The costs, including all legal fees,
attributable to the foreign lawsuit that have been
borne by the United States person.
(C) The harm caused to the United States person due
to decreased opportunities to publish, conduct
research, or generate funding.
(d) Treble Damages.--If, in an action brought under subsection (a),
the court or, if applicable, 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, or discouraging
employers, contractors, donors, sponsors, or similar financial
supporters not to employ, retain, or support, the research, writing, or
other speech of a journalist, academic, commentator, expert, or other
individual, the court may award treble damages.
(e) Expedited Discovery.--Upon the filing of an action under
subsection (a), the court may order expedited discovery if the court
determines, based on the allegations in the complaint, that the speech
at issue in the foreign defamation action is protected under the first
amendment to the Constitution of the United States.
(f) Venue.--An action under subsection (a) may be brought by a
United States person only in a United States district court in which
the United States person is domiciled, does business, or owns real
property that could be executed against in satisfaction of a judgment
in the foreign defamation lawsuit giving rise to the action.
(g) Timing of Action; Statute of Limitations.--
(1) Timing.--An action under subsection (a) may be
commenced after the filing of the defamation lawsuit in a
foreign country on which the action is based.
(2) Statute of limitations.--For purposes of section
1658(a) of title 28, United States Code, the cause of action
under subsection (a) accrues on the date on which the
defamation lawsuit in a foreign country on which the cause of
action is based is filed.
SEC. 4. APPLICABILITY.
This Act applies with respect to any foreign lawsuit that is
described in section 3(a) and is brought in the foreign country
concerned before, on, or after the date of the enactment of this Act.
SEC. 5. CONSTRUCTION.
Nothing in this Act limits the right of foreign litigants who bring
good faith defamation actions to prevail against journalists,
academics, commentators, and others who have failed to adhere to
standards of professionalism by publishing false information
maliciously or recklessly.
SEC. 6. DEFINITIONS.
In this Act:
(1) Defamation.--The term ``defamation'' means any action
for defamation, libel, slander, or similar claim alleging that
forms of speech are false or have caused damage to reputation.
(2) Foreign country.--The term ``foreign country'' means
any country other than the United States.
(3) Foreign judgment.--The term ``foreign judgment'' means
any judgment of a foreign country, including the court system
of a foreign country, that grants or denies any form of relief,
including injunctive relief and monetary damages, in a
defamation action.
(4) United states.--The term ``United States'' means the
several States, the District of Columbia, and any commonwealth,
territory, or possession of the United States.
(5) United states person.--The term ``United States
person'' includes a United States citizen, an alien lawfully
admitted for permanent residence to the United States, and a
business entity incorporated in, or with its primary location
or place of operation in, the United States.
<all>
Introduced in Senate
Sponsor introductory remarks on measure. (CR S3793-3794)
Read twice and referred to the Committee on the Judiciary.
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