Thursday, August 12, 2010

SPEECH Act May Not Be The Final Word

Recently I discussed the SPEECH Act passed in July which gave some federal protection from lawsuits designed to suppress any criticism of Islam (here). For further background, you might want to read the two posts addressing the double-whammy of litigation against critics of Islam: Lawfare and Libel Tourism.

The SPEECH in SPEECH Act stands for Securing the Protection of our Enduring and Established Constitutional Heritage. It's a grand historical note that America has a First Amendment protecting freedom of speech and freedom of the press. Even our friends in the West have nothing comparable to it, and in other parts of the world, free speech is a totally alien concept. Congress finally recognized that foreign lawsuits and immense money damage awards brought to the United States for enforcement were actually nothing more than an indirect attack on a basic American right guaranteed by the Constitution. The Act could have been stronger, and may yet be improved upon in future legislation, but it is already a major step toward protecting American authors from the chilling effect on freedom of speech occasioned by the threat of facing huge damage awards obtained overseas but enforced here.

The thing that suddenly struck me (and a lot of lawyers currently in practice) is that given the nature of the central statist Obama administration, there could be a problem with the legislation that wasn't originally contemplated. Think in terms of the Arizona immigration law. It does nothing that the federal law doesn't already provide for. It creates no unique new State enforcement power. Yet the Obama administration found it necessary to file a lawsuit to prevent Arizona from enforcing its own law on the basic grounds of federal preemption/federal supremacy. How dare a State use its inherent police power to assist the federal government in enforcing the law?

Now, let's take a look at the SPEECH Act. The action by the federal government is not unique, and it certainly isn't the first governmental action to stop the suppression of speech by the use of libel tourism. The first act to protect an author from the predations of an Islamic litigation thug resulted from the publication of a book written by American author Rachel Ehrenfeld. The Book is entitled Funding Evil and it discusses the ways that Islam raises money to support worldwide jihad. It also names names, and one of those names hired a lawyer. 23 copies of the book somehow made it to England where the libel laws are loose, the burden of proof shifts to the defendant to prove he or she didn't commit libel, and the suits produce shamefully large awards of money damages.

The damage award was then carried to the United States for enforcement. To its eternal credit, the State of New York refused to enforce the judgment and quickly enacted the original libel tourism act. Three other States have since passed similar legislation. Bills addressing the same subject have been introduced in another twenty States. What the federal legislation might do to each of these States is now a potential conflict that few would want and few had even considered. Still, given the propensities of the Obama administration, and the Holder Justice Department in particular, it may be time for the States to prepare for a Summons and Complaint from the feds.

For the States which have not already passed libel tourism statutes, the federal legislation provides at least some protection for authors and speakers in their jurisdiction. But for those which have passed their own statutes, a warning is in order. Each State has passed legislation which is stronger in its provisions and penalties than the federal statute. Some provide for sanctions against attorneys and/or their clients who bring such damage awards for enforcement. At least one provides for cross-complaints for abuse of process and awards of money damages to the original defendant.

So what happens if an Islamic libel tourist files for enforcement of a judgment in one of the states with legislation more punitive than the federal law? We have no way of knowing, but it's possible to hazard an intelligent guess. Let's assume the author has offended an oil billionaire from a Muslim nation with an Obama-friendly potentate like, say, Saudi Arabia? And what if word gets back to Obama and Holder from Riyadh that the king and the billionaire are not happy about the jury award of $1 million to the author on a cross-complaint ("counter-claim") in a State court?

It is entirely conceivable that Holder will quickly put his staff of political lawyers to work on filing a lawsuit to overturn the State judgment. That could produce one of two possible results--perhaps both. First, a federal judge could find that federal law regarding foreign lawsuits preempts the legal field, and that no State has the right to pass its own laws of any kind on the subject. Second, the judge could find that Congress has not preempted the legal field, but he could still find that the First Amendment is such a basic Constitutionally protected area of law that the federal interest is superior to the State interest and hold that only the provisions of the SPEECH Act would apply. Since there is no provision in the SPEECH Act for awards on counter-claims as it currently exists, the damages award could be stricken entirely or reduced solely to award the defendant the costs of defending the suit.

Much of my thinking here is what could happen, not what will happen. But then that's what I got paid to do for much of my adult life. My suspicions about federal intervention have increased by leaps and bounds since Holder became Attorney General. My suspicions about federal obsequiousness toward oil dictatorships in Muslim lands have increased by leaps and bounds since Obama became President. So if I'm right, you heard it here first. If I turn out to be wrong, kindly disregard this article (LOL). Just remember, the Holder Justice Department is unconcerned about mass illegal immigration, but quickly and rabidly attacked in court the people of a State which is concerned about illegal immigration and attempted to do something about the problem washing across its borders. Holder strongly believes that no State has the right to defend its own citizens.

Lest anyone think I only applaud Republicans, I should point out that the SPEECH Act was proposed by Rep. Steve Cohen, a Democrat from Tennessee. Too late for the SPEECH Act, he saw the possibility of noxious interference from the federal government and wrote successful legislation regarding domestic lawsuits which violate the basic American right of free speech. That is pretty much the death knell for Islamists who wish to file their original suits here in the States. He is now contemplating introducing a companion bill to the SPEECH Act which would state clearly that the SPEECH Act should not preempt any state law which otherwise observes the formalities of the Constitution. In the meantime, we're still waiting for England to act on its own outrageous libel laws, something they have been promising to do for nearly two years now.


AndrewPrice said...

You know what I wonder out, shouldn't the court hold that enforcing such a judgment here violates the First Amendment? In other words, it would be the same thing like being convicted of blasphemy in a Muslim country and then trying to get a US court to enforce it -- the court should find that what they are trying to enforce is not a valid and enforceable claim in the US because enforcing that would violate the First Amendment?

Obviously, you can't stop yourself from being punished if you returned to that other country (or England), but I can't see how it gets enforced here.

Anonymous said...

Andrew: The basic excuse is that they "don't look behind the curtain" to see what prompted the decision. And there's the other excuse that it's not up to American courts to determine the validity of law in other allied nations (the main reason that England is such a fertile ground for libel suits which are then carried to America for enforcement). It seems pretty weak to me, and I think you're right that a basic American should trump foreign law every time.

We both know that even a domestic statute that is constitutional on its face can be voided because its implementation has an unconstitutional effect.

That's what New York originally addressed, and I think they (and to a lesser extent, Congress) were exactly right. Worst of all, Ehrenfeld's book was never even published in England. Some copies published in the US made their way to England. That's the most tenuous connection I've ever seen.

AndrewPrice said...

I'm not saying you're wrong, sadly I think you're right. But if American courts allow this. . . then there is something very wrong with American courts.

Our Constitution provides certain rights and there should not be an end-around just by going to another country.

Seriously, are we going to have another Dred Scott decision if someone gets legally enslaved in Sudan and makes it to US?

Mobius said...

Lawhawk, How did England get to do this if the book wasn't sold in England? I thought you had to go somewhere or do business there before the courts could grab you?

Anonymous said...

Andrew: It's a sad commentary, isn't it? Even treaties which are somewhat sacrosanct by virtue of the Constitution can be partially inoperative if a provision conflicts with basic American law. Yet simple English libel statutes were being enforced as if they stood higher in the Constitutional hierarchy than treaties. Frankly, I don't get it.

Your Dred Scott analogy might sound over-the-top to some, but in fact it's extremely accurate. And it took thirteen amendments to the Constitution to get to that point. Freedom of speech and the press were protected in the very first amendment.

Anonymous said...

Mobius: You obviously know something about American law. Long-arm statutes stretch that basic concept a bit, but they don't break it. The problem is that the American rule applies basically to the filing of the lawsuits and the taking of jurisdiction. It doesn't apply to judgments obtained elsewhere, unless enforcement would violate a fundamental American right (which we're arguing it does).

England's libel laws are vastly more plaintiff-friendly than ours, and have very little connection to freedom of speech the way ours do. In England, it's even possible to be convicted of criminal libel for making certain classes of political allegations against the monarch.

The truly strange part of the original Ehrenfeld suit in England is that the publication rule normally applies there as well. English tabloids have avoided nearly identical types of lawsuits by publishing quotes from American newspapers as reporting rather than publishing them as allegations of their own. Thus, they are not making the allegation, they're merely reporting the allegations made in America where libel laws are far tighter. The only difference I can see here is that this suit involved Islam and a very rich Muslim plaintiff. Europeans have until recently been far more fearful of offending their Muslim populations than we.

The publication rule generally applies to intent to distribute as well. But frankly, I can't see how the presence of 23 copies of the book showed any intent to distribute. We would probably need a knowledgeable barrister or solicitor from England to explain that to us.

Notawonk said...

holder. i *knew* i left someone off my asswipes list today.

Anonymous said...


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