[Pages S5978-S5980]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

SECURING THE PROTECTION OF OUR ENDURING AND ESTABLISHED CONSTITUTIONAL
HERITAGE

Mr. LEAHY. Mr. President, I ask unanimous consent that the Senate
proceed to the immediate consideration of Calendar No. 460, H.R. 2765.
The ACTING PRESIDENT pro tempore. The clerk will report the bill by
title.
The legislative clerk read as follows:

A bill (H.R. 2765) to amend title 28, United States Code,
to prohibit recognition and enforcement of foreign defamation
judgments and certain foreign judgments against the providers
of interactive computer services.

There being no objection, the Senate proceeded to consider the bill,
which had been reported from the Committee on the Judiciary, with an
amendment to strike all after the enacting clause and insert in lieu
thereof the following:

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Securing the Protection of
our Enduring and Established Constitutional Heritage Act'' or
the ``SPEECH Act''.

SEC. 2. FINDINGS.

Congress finds the following:
(1) The freedom of speech and the press is enshrined in the
first amendment to the Constitution, and is necessary to
promote the vigorous dialogue necessary to shape public
policy in a representative democracy.
(2) Some persons are obstructing the free expression rights
of United States authors and publishers, and in turn chilling
the first amendment to the Constitution of the United States
interest of the citizenry in receiving information on matters
of importance, by seeking out foreign jurisdictions that do
not provide the full extent of free-speech protections to
authors and publishers that are available in the United
States, and suing a United States author or publisher in that
foreign jurisdiction.
(3) These foreign defamation lawsuits not only suppress the
free speech rights of the defendants to the suit, but inhibit
other written speech that might otherwise have been written
or published but for the fear of a foreign lawsuit.
(4) The threat of the libel laws of some foreign countries
is so dramatic that the United Nations Human Rights Committee
examined the issue and indicated that in some instances the
law of libel has served to discourage critical media
reporting on matters of serious public interest, adversely
affecting the ability of scholars and journalists to publish
their work. The advent of the internet and the international
distribution of foreign media also create the danger that one
country's unduly restrictive libel law will affect freedom of
expression worldwide on matters of valid public interest.
(5) Governments and courts of foreign countries scattered
around the world have failed to curtail this practice of
permitting libel lawsuits against United States persons
within their courts, and foreign libel judgments inconsistent
with United States first amendment protections are
increasingly common.

SEC. 3. RECOGNITION OF FOREIGN DEFAMATION JUDGMENTS.

(a) In General.--Part VI of title 28, United States Code,
is amended by adding at the end the following:

``CHAPTER 181--FOREIGN JUDGMENTS

``Sec.
``4101. Definitions.
``4102. Recognition of foreign defamation judgments.
``4103. Removal.
``4104. Declaratory judgments.
``4105. Attorney's fees.

[[Page S5979]]

``Sec. 4101. Definitions

``In this chapter:
``(1) Defamation.--The term `defamation' means any action
or other proceeding for defamation, libel, slander, or
similar claim alleging that forms of speech are false, have
caused damage to reputation or emotional distress, have
presented any person in a false light, or have resulted in
criticism, dishonor, or condemnation of any person.
``(2) Domestic court.--The term `domestic court' means a
Federal court or a court of any State.
``(3) Foreign court.--The term `foreign court' means a
court, administrative body, or other tribunal of a foreign
country.
``(4) Foreign judgment.--The term `foreign judgment' means
a final judgment rendered by a foreign court.
``(5) State.--The term `State' means each of the several
States, the District of Columbia, and any commonwealth,
territory, or possession of the United States.
``(6) United states person.--The term `United States
person' means--
``(A) a United States citizen;
``(B) an alien lawfully admitted for permanent residence to
the United States;
``(C) an alien lawfully residing in the United States at
the time that the speech that is the subject of the foreign
defamation action was researched, prepared, or disseminated;
or
``(D) a business entity incorporated in, or with its
primary location or place of operation in, the United States.

``Sec. 4102. Recognition of foreign defamation judgments

``(a) First Amendment Considerations.--
``(1) In general.--Notwithstanding any other provision of
Federal or State law, a domestic court shall not recognize or
enforce a foreign judgment for defamation unless the domestic
court determines that--
``(A) the defamation law applied in the foreign court's
adjudication provided at least as much protection for freedom
of speech and press in that case as would be provided by the
first amendment to the Constitution of the United States and
by the constitution and law of the State in which the
domestic court is located; or
``(B) even if the defamation law applied in the foreign
court's adjudication did not provide as much protection for
freedom of speech and press as the first amendment to the
Constitution of the United States and the constitution and
law of the State, the party opposing recognition or
enforcement of that foreign judgment would have been found
liable for defamation by a domestic court applying the first
amendment to the Constitution of the United States and the
constitution and law of the State in which the domestic court
is located.
``(2) Burden of establishing application of defamation
laws.--The party seeking recognition or enforcement of the
foreign judgment shall bear the burden of making the showings
required under subparagraph (A) or (B).
``(b) Jurisdictional Considerations.--
``(1) In general.--Notwithstanding any other provision of
Federal or State law, a domestic court shall not recognize or
enforce a foreign judgment for defamation unless the domestic
court determines that the exercise of personal jurisdiction
by the foreign court comported with the due process
requirements that are imposed on domestic courts by the
Constitution of the United States.
``(2) Burden of establishing exercise of jurisdiction.--The
party seeking recognition or enforcement of the foreign
judgment shall bear the burden of making the showing that the
foreign court's exercise of personal jurisdiction comported
with the due process requirements that are imposed on
domestic courts by the Constitution of the United States.
``(c) Judgment Against Provider of Interactive Computer
Service.--
``(1) In general.--Notwithstanding any other provision of
Federal or State law, a domestic court shall not recognize or
enforce a foreign judgment for defamation against the
provider of an interactive computer service, as defined in
section 230 of the Communications Act of 1934 (47 U.S.C. 230)
unless the domestic court determines that the judgment would
be consistent with section 230 if the information that is the
subject of such judgment had been provided in the United
States.
``(2) Burden of establishing consistency of judgment.--The
party seeking recognition or enforcement of the foreign
judgment shall bear the burden of establishing that the
judgment is consistent with section 230.
``(d) Appearances Not a Bar.--An appearance by a party in a
foreign court rendering a foreign judgment to which this
section applies shall not deprive such party of the right to
oppose the recognition or enforcement of the judgment under
this section, or represent a waiver of any jurisdictional
claims.
``(e) Rule of Construction.--Nothing in this section shall
be construed to--
``(1) affect the enforceability of any foreign judgment
other than a foreign judgment for defamation; or
``(2) limit the applicability of section 230 of the
Communications Act of 1934 (47 U.S.C. 230) to causes of
action for defamation.

``Sec. 4103. Removal

``In addition to removal allowed under section 1441, any
action brought in a State domestic court to enforce a foreign
judgment for defamation in which--
``(1) any plaintiff is a citizen of a State different from
any defendant;
``(2) any plaintiff is a foreign state or a citizen or
subject of a foreign state and any defendant is a citizen of
a State; or
``(3) any plaintiff is a citizen of a State and any
defendant is a foreign state or citizen or subject of a
foreign state,
may be removed by any defendant to the district court of the
United States for the district and division embracing the
place where such action is pending without regard to the
amount in controversy between the parties.

``Sec. 4104. Declaratory judgments

``(a) Cause of Action.--
``(1) In general.--Any United States person against whom a
foreign judgment is entered on the basis of the content of
any writing, utterance, or other speech by that person that
has been published, may bring an action in district court,
under section 2201(a), for a declaration that the foreign
judgment is repugnant to the Constitution or laws of the
United States. For the purposes of this paragraph, a judgment
is repugnant to the Constitution or laws of the United States
if it would not be enforceable under section 4102 (a), (b),
or (c).
``(2) Burden of establishing unenforceability of
judgment.--The party bringing an action under paragraph (1)
shall bear the burden of establishing that the foreign
judgment would not be enforceable under section 4102 (a),
(b), or (c).
``(b) Nationwide Service of Process.--Where an action under
this section is brought in a district court of the United
States, process may be served in the judicial district where
the case is brought or any other judicial district of the
United States where the defendant may be found, resides, has
an agent, or transacts business.

``Sec. 4105. Attorneys' fees

``In any action brought in a domestic court to enforce a
foreign judgment for defamation, including any such action
removed from State court to Federal court, the domestic court
shall, absent exceptional circumstances, allow the party
opposing recognition or enforcement of the judgment a
reasonable attorney's fee if such party prevails in the
action on a ground specified in section 4102 (a), (b), or
(c).''.
(b) Sense of Congress.--It is the Sense of the Congress
that for the purpose of pleading a cause of action for a
declaratory judgment, a foreign judgment for defamation or
any similar offense as described under chapter 181 of title
28, United States Code, (as added by this Act) shall
constitute a case of actual controversy under section 2201(a)
of title 28, United States Code.
(c) Technical and Conforming Amendment.--The table of
chapters for part VI of title 28, United States Code, is
amended by adding at the end the following:

``181. Foreign judgments...................................4101.''.....

Mr. LEAHY. Mr. President, I ask unanimous consent that the committee-
reported substitute amendment be agreed to, the bill, as amended, be
read a third time and passed, the motions to reconsider be laid upon
the table, with no intervening action or debate, and any statements
related to the bill be printed in the Record.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The committee amendment in the nature of a substitute was agreed to.
The amendment was ordered to be engrossed and the bill to be read a
third time.
The bill was read the third time.
The bill (H.R. 2765), as amended, was passed.
Mr. LEAHY. Mr. President, today the Senate has passed important
bipartisan legislation to reduce the chilling effect that foreign libel
lawsuits are having on Americans' first amendment rights.
I am the son of printers and I consider this a matter of great
importance. My parents told me from the time I was a child: Believe in
and uphold the first amendment. It is the basis of our democracy. It
guarantees us the right to practice any religion we want or none if we
want. And it protects the right of free speech. Those protections
guarantee diversity. If you have a constitution that guarantees
diversity, you guarantee a democracy.
That is what this does. I wish to thank Senator Sessions, the ranking
member of the Senate Judiciary Committee, for working with me on this
bill.
Let me speak a little bit about what the bill does. The Securing the
Protection of our Enduring and Established Constitutional Heritage Act
or, as we call it, the SPEECH Act, will ensure that American courts
will not enforce foreign libel judgments from countries where free
speech protections are lower than what our Constitution affords against
American journalists, authors, and publishers.
Too frequently, foreign plaintiffs bring libel suits against American
writers and publishers in countries where the plaintiff or the
publication lacks any significant connection to the foreign forum. The
lawsuit is brought there because of that foreign country's weaker
plaintiff-friendly libel laws. This is known colloquially as libel
tourism.
In other words, if somebody in the United States writes a book,
probably

[[Page S5980]]

very accurate, about some despot or some leader of a country who has
done criminal acts, has stolen the property of that country or any one
of a number of things--it could be very accurate and, in our country,
truth is a defense--what they will do is maybe order online a couple
copies of the books and deliver them to another country with weak libel
laws and then seek judgments against the author, against the publisher,
against newspapers that may have published excerpts of it; everything
to chill any criticism of those who have either breached human rights
or stolen from their own country and on and on.
On a broad scale, libel tourism results in a race to the bottom. It
causes America to defer to a country with the most chilling and
restrictive free speech standard determining what they can write or
publish. This undermines our first amendment. The first amendment, as I
said earlier, guarantees the diversity of thought and opinion in this
country which actually allows and determines and guarantees that
democracy.
The freedoms of speech and the press are cornerstones of our
democracy. They enable vigorous debate, and an exchange of ideas that
shapes our political process. Reporters, authors and publishers are
among the primary sources of these ideas, and their ability to
disseminate them through their writings is critical to our democracy.
The broad dissemination of materials through the Internet, as well as
the increased number of worldwide newspapers and periodicals, has
compounded the threat of libel tourism.
This problem is well documented. Two years ago, the United Nations'
Human Rights Committee observed that one country's libel laws
``discourage[d] critical media reporting on matters of serious public
interest, adversely affect[ed] the ability of scholars and journalists
to publish their work,'' and ``affect[ed] freedom of expression
worldwide on matters of valid public interest.''
Several States, to their credit, have enacted legislation to combat
this problem, but we need a national response. While we can't legislate
changes to foreign laws that are chilling protected speech in our
country, what we can do to uphold the right of free speech in our own
country is assure that our courts do not become a tool to uphold
foreign libel judgments that undermine American first amendment or due
process rights. The SPEECH Act is an important step toward reducing
this chilling of American free speech
The SPEECH Act is an important step toward reducing this chilling of
American free speech. Americans have a great gift in their right of
free speech. Every single Senator, Republican and Democratic, should
join, as we have in this case, to protect America's rights.
The SPEECH Act is the product of hard work and extensive negotiations
on both sides of the aisle, and the process is certainly mindful about
principles of international comity. Many supporters would not have
written this bill in this exact way, but all recognize that a
bipartisan compromise is an important step in confronting the libel
tourism issue. Without it, we could not pass this bill.
Among the supporters are the Vermont Library Association, former
Attorney General Michael Mukasey, the former Director of the Central
Intelligence Agency, James Woolsey, the American Library Association,
the Association of American Publishers, the Reporters Committee for
Freedom of the Press, the American Civil Liberties Union, Net
Coalition, and renowned first amendment lawyer, Floyd Abrams.
I would also like to recognize Dr. Rachel Ehrenfeld, Director of the
American Center for Democracy, who herself has been the victim of a
libel suit in the United Kingdom, and has been a tremendous advocate
for Congressional action in this area.
I wish to thank Senators Specter, Schumer, and Lieberman for their
work in raising this important issue in the Senate and Representative
Cohen for his hard work on libel tourism legislation in the other body.
I am pleased the Senate has adopted this bipartisan legislation. I look
forward to its prompt consideration and adoption by the House and to
the President signing it into law.
Mr. President, I do not see anybody else seeking recognition, so I
will suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. SESSIONS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.

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