Thursday, July 22, 2010

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.

17 comments:

AndrewPrice said...

Good. This is about time. The same rule has applied in criminal extradition cases since forever -- if it's not a crime here, then they can't charge you with it there and enforce it here. I'm glad someone finally got around to fixing this.

LawHawkRFD said...

Andrew: I think it's also an indication that even Democrats are starting to realize that these UN conventions and the International Criminal Court are deep and abiding dangers to the rule of law and the ideals set forth in the Declaration and the Constitution. Most foreign states, including the western nations, are in agreement with UN usurpation of national sovereignty, and consider our Constitutional restraints to be outmoded roadblocks to the utopian world of Kumbaya.

They don't seem to mind our own courts becoming houses of social engineering, but they appear to be drawing the line at "shoot from the hip" foreign law and shar'ia-like UN "human rights" limitations on speech.

This is a good start, but it's only a start. "Speak no evil" is good advice, but it's not sound law and forbidding it requires accepting one side of the debate as being the "correct" one. When hurt feelings trump freedom to speak one's mind, or even to cite provable facts, the whole world, not just America, is endangered.

BevfromNYC said...

Hey this just in on Rangel - The Ethics Committee just brought the hammer down on Ol' Charlie and finally charged him with multiple ethics violations. He now has to face a House trial, which as AP reports will take him right up to election time!
http://news.yahoo.com/s/ap/20100722/ap_on_go_co/us_rangel_ethics

Tennessee Jed said...

Nice article, Hawk. Sometimes even the Dems do the right thing. I had not heard about this. Not bad for a "fringe" right wing website, eh?

LawHawkRFD said...

Bev: At last--somebody must have given the Democrats a dictionary with the word "ethics" highlighted. Either that, or they read the handwriting on the wall.

LawHawkRFD said...

Tennessee: I would not have been able to do this without our huge and dedicated staff of reporters. LOL

What surprises me is that we managed to find this, but the Democrats, who would benefit from a little pro-free speech puffery, have failed to get their p.r. people to get the news out.

HamiltonsGhost said...

Lawhawk--The woman in the picture is saying "glmph dadurt skzza pffff." That's burqa in the mouth for "we don't need no stinking first amendment."

LawHawkRFD said...

HamiltonsGhost: Thank you. I didn't realize there was audio, and it wouldn't have done me any good anyway since I don't speak or understand cotton-mouth.

StanH said...

Well glory be! …these Washington dunder heads get something right! However, my suspicious mind says, whenever the R’s and The D’s join hands in the spirit of bipartisanship we generally get screwed some way, some how. What’s in it for them? I hope it’s purely for the good of the people…cynicism off.

Your staff are the Boiler Room Elves. If you look real close, at most live shots in the MSM, you’ll see the little bastards with pencil, pad, camera, at the ready, always wearing their invisible Commentarama T-shirts proudly!

LawHawkRFD said...

Stan: For once, I can't find a negative in an act of the Senate. The Republicans voted for it because they are tired of the erosion of the First Amendment. Some Democrats did so for the same reason. Undoubtedly others read the signs of the times, knew that being in favor of Muslims using our courts to drown free speech was political suicide, and voted yes simply because they want to be among the survivors of the Great Washington Turkey Shoot about to occur in November.

The elves have done a good job for us, though they do seem to occasionally have problems covering stories about tall people.

StanH said...

I love it, “The Great Washington Turkey Shoot,” starts in November!

LawHawkRFD said...

Stan: It came to me in a blinding revelation!

StanH said...

Those are the best kind.

CalFederalist said...

LawHawk. "Freedom of Expression is Western Terrorism?!?!" Too bad they didn't let the burqa babe go to a genuine school so she would know what terrorism really is. She was probably one of those loving Muslims who danced in the streets on 9-11.

LawHawkRFD said...

Stan: I'm just a voice crying in the wilderness (at least since I moved to Caliente). LOL

LawHawkRFD said...

CalFed: I'm wracking my brain trying to remember the last time anyone died a brutal death from a dissenting word. On the other hand I can immediately come up with an instance where about 3,000 people died in a few short hours at the hands of people who think freedom of expression is terrorism.

Patti said...

wow. hadn't heard of this. thanks for the article. i like a bit of good news. doesn't come close to offsetting the bad (kinda like a dem cost cutting measure....so tiny!), but i'll take it.

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