Freedom Of Speech Wins A Round

Some time back, I posted an article about suppression of free speech fomented by Islamics using the courts to shut down any author who dared to criticize any facet of Islam, including discussions of Mohammed, the Koran, and the political nature of worldwide Islam. The legal vehicle used was "libel tourism." For the earlier discussion, go here.

We should thank the Good Lord, and occasionally Congress, for small favors. In a completely unpublicized action, the United States Senate struck a small blow for free speech and getting the courts out of the business of settling religious scores. Last Monday the Senate unanimously passed the SPEECH Act. America is one of the very few nations with a foundational document guaranteeing the right to publish opinions that large numbers of people would find offensive. So it has been hard for Muslim speech-haters to get very far trying to suppress publication in America of reports and opinions concerning the nefarious activities of important international Muslims.

Therefore, the offended Muslims found a way around the First Amendment. If an American writes and publishes a piece highly critical of Islam and its prophet Mohammed, and that piece ends up being read or reproduced outside the United States, use the courts of those other countries, argue one or more of the multiple versions of defamation law available almost everywhere else, obtain a judgment, then bring that big bucks judgment to the United States and demand the courts enforce it. This form of speech suppression via the back door came to be called "libel tourism."

In the earlier article, I made mention of several states which were faced with the demand for enforcement of the foreign judgments, and refused, God bless them. Their logic was that the state has no local jurisdictional obligation to honor the foreign judgment and because the issue directly addressed freedom of speech, a fundamental American right, the court was within the realm of federal precedent by refusing to enforce the judgments. But it was risky business, given the federal supremacy argument and crazed federal appellate jurisdictions such as the Ninth Circuit.

The SPEECH Act just passed by the Senate mirrors the New York State Libel Terrorism Protection Act. If the House concurs, it will be federal law that enforcement of foreign libel judgments against American citizens is prohibited if it is deemed substantially likely that the action, if brought originally in an American court, would have been dismissed on First Amendment grounds. In the case of "egregious misuse" of foreign libel law, the defendant may also be awarded attorney's fees.

This is only a partial victory, yet a very significant one. I would like to have seen a section of the law providing specific rules for counter-claims or cross-complaints for abuse of process and malicious prosecution, but I'll take what I can get. States other than New York had been slow to respond to the massive threat of money judgments shutting down free speech and chilling the First Amendment. The federal government has been even slower, and this Act might make up for their dilatoriness.

There is only so much that a law of Congress (and the assumption of it being upheld by the Supreme Court) can do. Libel tourists can still bring their foreign actions in foreign courts. They can still obtain judgments and immense monetary damages. And if the benighted American makes the mistake of traveling to the country that allowed the judgment, there could be serious financial consequences. In those countries which have lax criminal libel statutes, it could even mean jail.

England is a favorite vacation spot for Americans, and though the Parliament has been giving serious consideration to major revisions of its libel law, they have thus far not accomplished that. It is one of those few areas of English common law that leans toward the continental legal concept of guilty until proven innocent. Once a formal libel charge has been made against an author, it is up to the author to prove it wasn't defamatory. What most Americans consider a basic legal concept is not that basic in other western nations, even those as much like America as England.

Even with the off-kilter Nancy Pelosi in charge, it is considered nearly a sure thing that the House will agree with the Senate on this issue. How quickly this will happen is another matter, since so far Ms. Pelosi has failed to set a date for the vote on the Senate bill.