Libel Tourism, and Specter and Lieberman’s Proposed Federal Law

Senators Arlen Specter and Joe Lieberman have a joint commentary in yesterday’s Wall Street Journal (July 14, 2008), promoting a federal law to discourage so-called “libel tourism.”  Libel tourism refers to the practice of a plaintiff suing for libel in a plaintiff-friendly jurisdiction – i.e., the UK – and then seeking to have the judgment enforced in US and other courts.  It is a tactic adopted several times in the last few years by wealthy Saudi businessmen and aimed at what is, under US law, not just generally “First Amendment protected speech,” but speech that under any serious moral view ought to be part of public debate in a democratic society.  (I think there have been some Opinio Juris posts on this in the past.)

Even the threat of litigation has been enough to cause presses such as Cambridge University Press not only to agree to pulp scholarly books, but to write to libraries calling for them to take the books off the shelves.  As Specter and Lieberman note: 

“English courts have become a popular destination for libel suits against American authors.  In 2003, U.S. scholar Rachel Ehrenfeld asserted in her book, “Funding Evil: How Terrorism Is Financed and How to Stop It,” that Saudi banker Khalid Bin Mahfouz helped fund Osama bin Laden. The book was published in the U.S. by a U.S. company. But 23 copies were bought online by English residents, so English courts permitted the Saudi to file a libel suit there.

“Ms. Ehrenfeld did not appear in court, so Mr. Bin Mahfouz won a $250,000 default judgment against her. He has filed or threatened to file at least 30 other suits in England.

“Fear of a similar lawsuit forced Random House U.K. in 2004 to cancel publication of “House of Bush, House of Saud,” a best seller in the U.S. that was written by an American author. In 2007, the threat of a lawsuit compelled Cambridge University Press to apologize and destroy all available copies of “Alms for Jihad,” a book on terrorism funding by American authors. The publisher even sent letters to libraries demanding that they destroy their copies, though some refused to do so.” 

For those who take free expression values seriously, as well as the ability to foster robust debate in the United States, the ability of foreign plaintiffs to use foreign courts to stifle free speech within the US is profoundly wrong.  Part of the problem is that robust speech, American style, is not favored in much of the rest of the world.  And among international elites and international law elites – in my estimation, at least – it is at least as disfavored; American international lawyers in my experience (and I sorrow to say it) tend to find the First Amendment somewhat embarrassing, a symbol of the illegitimate and outlier tendencies of American constitutionalism and its refusal to get with the liberal internationalist program.  That is a discussion for another day – how that situation has come about and why among international law elites. 

For now I’ll just note that New York state has passed a law (signed May 1) by Governor Patterson, prohibiting New York courts from enforcing judgments that are inconsistent with the first amendment.  Renowned First Amendment lawyer Floyd Abrams argued for such an approach a few months ago in the Wall Street Journal.   

The bigger problem is that, faced with deep pocketed, ideologically driven litigants, a refusal to enforce the judgment is an inadequate redress.  The playing field is not leveled simply by denying the ability to collect on the judgment in the US – defendants, especially corporate ones, such as publishers, have assets elsewhere – and the costs of defense are dramatic.   

In any case, the point should not be a level playing field – the point is vigorously to dissuade plaintiffs from undermining Americans’ constitutional rights.  Specter and Lieberman have joined on a bill that would establish the New York principle at the federal level – but, more importantly, add the ability of American authors and publishers to counter-sue and show in a jury trial a scheme to undermine First Amendment rights, with the possibility of treble damages.  

That idea of a counter-suit in American courts is a good one from the standpoint of disincentivizing plaintiffs from going after Americans for exercising their first amendment rights.  I myself think that in addition to treble damages, however, the trial judge ought to be allowed to additionally impose discretionary damages sufficient to the level that she thinks necessary to deter the plaintiff – up to, oh say, a billion dollars.  And refusal of entry into the United States for the plaintiff and anyone shown to be connected in furtherance of the ‘scheme’ would be pretty good idea, too.  

Final note:  I see from his prior posts that Peter would disagree that over the long run the United States can run its own constitutional policy and urges that instead it should seek to influence the international norms that will eventually come to prevail.  That is leaving aside, as he says, the question of the merits.  I’m linking here to Ilya Somin’s debate at Volokh Conspiracy on this, as I can’t seem to find the link – maybe Peter can give it to me.  I share Ilya’s skepticism that the situation is quite as dire as that.  Is the US really so unable to enforce its own norms over the long term, at least within the rough contours of its own jurisdiction?  In any case, it can certainly make it prohibitively expensive in the short and medium term; why should it always be argued that the US is unable to sustain its outlier position, when one might just as well say that the outlier here is English libel law?  Anyway, you won’t really know until you try, and since I favor First Amendment rights in America, I fail to see any downside.  

More generally, I am a little worried about a form of analysis that says, descriptively, what the US is able to do correlates100% with what a liberal internationalist would like it to do; and what it is not able to do, also correlates 100% with what a liberal internationalist would like it not to be able to do – at least over the long run.  I suppose that might always be the case, and that it is an example of the superior form of predictive analysis of liberal internationalism.  But it leads me to wonder about liberal internationalist a priori derivations of is’s from ought’s.  And the projection of hope onto experience – but offered not as a verifiable description of today, but instead as a currently nonverifiable prediction that, if taken seriously by enough actors, however, produces the very outcome both predicted but also sought.  (I have the same conflationary tendency, I hasten to add, from the democratic sovereignty perspective.) 

In any case, the idea of influencing the directions of such things as free expression in the “international community” seems to me a mug’s game – why go down a road you’re guaranteed to lose?  The concept of free expression within the international system today lies almost entirely in the hands of the largely authoritarian countries of the Islamic Conference, and in organs controlled by its members with respect to these matters, starting with the General Assembly and the Human Rights Council.  The priority for those entities and their members is to make criticism of religion, and Islam in particular, a human rights violation all its own.  No amount of engagement by the United States will have any impact on that, and going where the international norms are drifting means little more than saying that not far in the future, religion cannot be criticized under international norms.  One thing the US can, however, do is make it very expensive to seek to impose these rules on persons in the US.  And better anyway to hold the line in favor of free expression on principle and invite others to do the same.