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111th Congress                                                   Report
                                 SENATE
 2d Session                                                     111-224

======================================================================



 
SECURING THE PROTECTION OF OUR ENDURING AND ESTABLISHED CONSTITUTIONAL 
                       HERITAGE (``SPEECH'') ACT

                                _______
                                

                 July 19, 2010.--Ordered to be printed

                                _______
                                

Mr. Leahy, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                        [To accompany H.R. 2765]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to which was referred the 
bill (H.R. 2765), to amend title 28, United States Code, to 
prohibit recognition and enforcement of foreign defamation 
judgments in United States Courts where those judgments 
undermine the First Amendment, and to provide a cause of action 
for declaratory judgment relief against a party who has brought 
a successful foreign defamation action whose judgment 
undermines the First Amendment, having considered the same, 
reports favorably thereon, with an amendment, and recommends 
that the bill, as amended, do pass.

                                CONTENTS

                                                                   Page
  I. Background and Purpose of the Securing the Protection of Our 
     Enduring and Established Constitutional Heritage Act.............2
 II. History of the Bill and Committee Consideration..................5
III. Section-by-Section Summary of the Bill...........................6
 IV. Congressional Budget Office Cost Estimate........................6
  V. Regulatory Impact Evaluation.....................................8
 VI. Conclusion.......................................................8
VII. Additional Views of Senator Kyl..................................9
VIII.Changes to Existing Law Made by the Bill, as Reported...........11


    I. BACKGROUND AND PURPOSE OF THE SECURING THE PROTECTION OF OUR 
          ENDURING AND ESTABLISHED CONSTITUTIONAL HERITAGE ACT

    In the United States, the First Amendment to the 
Constitution protects writers and publishers from libel 
lawsuits that would discourage otherwise protected speech.\1\ 
Since the landmark New York Times v. Sullivan,\2\ a plaintiff 
must establish that an author, writer, or publisher of an 
allegedly libelous statement against a public figure acted with 
``actual malice'' to prevail in a defamation suit.\3\ Even a 
private figure must demonstrate that speech at issue is 
provably false to prevail in a libel action over a matter of 
public interest.\4\ This is rooted in the basic First Amendment 
principle that vulgar and distasteful speech merits the same 
protections as speech that does not offend.\5\
---------------------------------------------------------------------------
    \1\See Hart-Hanks Communications, Inc. v. Connaughton, 491 U.S. 
657, 684 (1989); see also Editorial, ``Libel Tourism,'' N.Y. Times, 
A18, May 25, 2009, available at http://www.nytimes.com/2009/05/26/
opinion/26tue2.html?_r=1.
    \2\376 U.S. 254, 268 (1964) (``[L]ibel can claim no talismanic 
immunity from constitutional limitations. It must be measured by 
standards that satisfy the First Amendment.'').
    \3\See id.
    \4\See Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) (``a 
statement on matters of public concern must be provable as false before 
there can be liability under state defamation law, at least in 
situations, like the present, where a media defendant is involved'').
    \5\See Cohen v. California, 403 U.S. 15, 26 (1971) (``[A]bsent a 
more particularized and compelling reason for its actions, the State 
may not, consistently with the First and Fourteenth Amendments, make 
the simple public display here involved of [a] single four-letter 
expletive a criminal offense.'').
---------------------------------------------------------------------------
    Many other countries do not provide these same free speech 
protections. As a result, American authors, reporters, and 
publishers are sometimes sued in foreign countries where free 
speech protections are lower than those guaranteed by our First 
Amendment. These lawsuits occur even where the parties do not 
have any substantial connection to the foreign forum. That 
phenomenon, where a party has sought out the foreign court 
simply because of its plaintiff-friendly libel laws, is known 
colloquially as ``libel tourism.''
    The prevalence of these foreign libel lawsuits is 
significantly chilling American free speech and restricting 
both domestic and worldwide access to important information. 
Given the international circulation of many U.S.-based 
publications, as well as the worldwide access to U.S.-based 
content over the Internet, concerns over foreign libel lawsuits 
confront many American authors, reporters, and publishers. 
Regardless, whether the foreign libel judgment is enforced in 
the United States or not, the mere filing of a foreign libel 
lawsuit can result in damage to an author, reporter or 
publisher's reputation.\6\ As a result, these lawsuits have a 
chilling effect on U.S. authors, reporters and publishers who 
are forced to abide by the libel laws of the most restrictive 
countries in order to completely shield themselves from harm--a 
result that runs counter to the free speech guarantees of the 
First Amendment.\7\
---------------------------------------------------------------------------
    \6\Rachel Ehrenfeld, ``The Chill of Libel Tourism,'' Guardian, June 
9, 2009, available at http://www.guardian.co.uk/commentisfree/
libertycentral/2009/jun/09/libel-tourism-rogues-gallery.
    \7\Drew Sullivan, ``Libel Tourism: Silencing the Press through 
Transnational Legal Threats,'' Report for the Center for International 
Media Assistance, 24, Jan. 6, 2010, available at (http://cima.ned.org/
wp-content/uploads/2010/01/CIMA-Libel_Tourism-Report.pdf) (``Lawyers 
and media organizations say one of the reasons for these lawsuits is to 
intimidate media organizations. Threatening media with expensive suits 
can force them to hold off on stories or remove materials from stories. 
It can discourage them from publishing future materials.'').
---------------------------------------------------------------------------
    The magnitude of this problem is well documented. In 2008, 
the United Nations Human Rights Committee reported that one 
foreign country's libel laws are so plaintiff-friendly that 
they have ``served to discourage critical media reporting on 
matters of serious public interest, adversely affecting the 
ability of scholars and journalists to publish their work.''\8\ 
This U.N. report explained that the additional concern with 
these defamation suits is that the ``advent of the Internet and 
the international distribution of foreign media . . . creates 
the danger that a State party's unduly restrictive libel law 
will affect freedom of expression world-wide on matters of 
valid public interest.''\9\
---------------------------------------------------------------------------
    \8\U.N. Human Rights Comm., Consideration of Reports Submitted by 
States, p. 25, Commc'n No. CCPR/C/GBR/CO/6 (July 7-25, 2008), 47 Eur. 
Ct. H.R. SE 19; see also Sarah Staveley-O'Carroll, Libel Tourism Laws: 
Spoiling the Holiday and Saving the First Amendment, 4 N.Y.U. J.L. & 
Liberty 252, 265 (2009).
    \9\U.N. Human Rights Comm., at 25.
---------------------------------------------------------------------------
    Over the past several years, this fear has come to pass. 
The most prominent example of the harm caused by foreign libel 
lawsuits involves Rachel Ehrenfeld, an investigative reporter 
and New York Times journalist, who is a United States citizen. 
Ms. Ehrenfeld was sued in the United Kingdom for defamation 
over the content of a book that she authored and published in 
the United States. In that book, Funding Evil: How Terrorism is 
Financed and How to Stop It,\10\ she reported, among other 
things, that Saudi billionaire Khalid bin Mahfouz deposited 
millions into terrorist accounts.\11\ Though Mr. Bin Mahfouz 
was neither a British citizen nor a resident, he sued Ms. 
Ehrenfeld in England, a country whose libel laws are much less 
protective of journalists than the protections guaranteed by 
the First Amendment.\12\ Mr. Bin Mahfouz won a default judgment 
against Ms. Ehrenfeld, and the British judge awarded damages 
and enjoined the publication of Ms. Ehrenfeld's book in the 
United Kingdom.\13\
---------------------------------------------------------------------------
    \10\Rachel Ehrenfeld, Funding Evil: How Terrorism is Financed and 
How to Stop It (Bonus Books 2003).
    \11\Samuel A. Abady and Harvey Silvergate, ```Libel Tourism' and 
the War on Terror,'' Boston Globe, Nov. 7, 2006, available at http://
www.boston.com/ae/media/articles/2006/11/07/
libel_tourism_and_the_war_on_terror/.
    \12\See id.
    \13\See ``Florida Becomes Latest State to Pass Libel Tourism Bill; 
California Could be Next,'' Weil Briefing: Intellectual Property and 
the Media, 2, May 13, 2009, available at (http://www.weil.com/files/
upload/WeilBriefing_IP-M_090513.pdf) (``In addition to awarding roughly 
$250,000 in damages, the court also issued a declaration of falsity and 
ordered that the book be removed from public libraries, that Ehrenfeld 
publish an apology, and that any unsold copies in England be 
destroyed.'').
---------------------------------------------------------------------------
    While Ms. Ehrenfeld's suit is the most recognizable, 
similar examples have become all too common.\14\ Today, lawyers 
must advise their journalist-clients of the legal repercussions 
of reporting on transnational issues such as international 
finance, terrorism, and celebrity scandals.\15\ This advice 
influences the decision of what materials to publish both 
overseas and domestically, and stifles the free flow of 
information.
---------------------------------------------------------------------------
    \14\See, e.g., Rendleman, supra note 1, at 468 (detailing Saudi 
cleric Bin Badden's suit against American professor, Helene Herron in 
the United Kingdom); Ehrenfeld, supra note 3 (describing legal threats 
made to American writer Michael Gross after he wrote a book portraying 
socialite Annette de la Renta in a manner that she did not approve).
    \15\Libel Tourism: Hearing on H.R. 6146 Before the Subcomm. on 
Commercial and Administrative Law of the H. Comm. on the Judiciary, 
111th Cong. 9-10 n. 30 (2009) (written statement of Bruce D. Brown, 
Partner, Baker & Hostetler, LLP).
---------------------------------------------------------------------------
    A few American states have enacted laws to protect American 
writers and publishers from foreign libel laws. In 2008, New 
York passed the Libel Terrorism Protection Act, which prohibits 
enforcement of foreign libel judgments in New York State that 
are inconsistent with the ``freedom of speech and press 
protections guaranteed by the United States or New York 
Constitutions.''\16\ That law also expanded New York's long arm 
statute to enable the American party to seek separate 
declaratory relief to determine liability for the foreign 
judgment under U.S. law, even where the foreign party does not 
attempt enforcement.\17\ In 2009, California enacted a similar 
law.\18\ Illinois and Florida implemented libel tourism 
nonrecognition legislation in 2008 and 2009, although neither 
state addressed the jurisdictional issues necessary to 
facilitate effective declaratory relief.\19\ Though a few other 
states are considering similar bills, the majority of states 
have not addressed this issue.
---------------------------------------------------------------------------
    \16\N.Y. C.P.L.R. 5304(b)(8) (2008).
    \17\N.Y. C.P.L.R. 5304(d).
    \18\Cal. C.C.P. Code Sec. 1716 (2010).
    \19\Compare 735 Ill. Comp. Stat. Ann. 5/12-621(b)(7) (2008), with 
Fla. Stat. Ann. Sec. Sec. 55.601, 55.605 (2009).
---------------------------------------------------------------------------
    Federal legislation is necessary to ensure that American 
authors, reporters, and publishers have nationwide protection 
from foreign libel judgments, even when the foreign party has 
not yet sought enforcement of those judgments in the United 
States. Additionally, federal legislation is needed to provide 
a single, uniform standard for addressing these foreign libel 
judgments.
    The Committee bill, as reported, combats the chilling 
effect that foreign defamation lawsuits are having on American 
free speech in two significant respects. First, the bill 
prohibits the enforcement of any foreign libel judgment that is 
inconsistent with United States First Amendment protections or 
Fifth and Fourteenth Amendment due process requirements. In 
that enforcement action, the burden falls on the foreign 
plaintiff to demonstrate that the foreign judgment is 
consistent with U.S. law. If the foreign plaintiff nonetheless 
seeks enforcement in an American court, the domestic party 
opposing enforcement of the judgment is entitled to reasonable 
attorneys' fees if it prevails in the enforcement action. This 
provision should serve to further deter enforcement actions of 
foreign judgments that threaten free speech.
    Second, the Committee bill, as reported, provides a 
mechanism for American authors, reporters, or publishers to 
clear their names even when the foreign party does not attempt 
to enforce its judgment in the United States. The bill creates 
a cause of action for declaratory relief where the foreign 
judgment is repugnant to the Constitution or laws of the United 
States. Such an action may be brought against a party with 
sufficient contacts anywhere in the United States. In this 
declaratory judgment action, the burden falls on the domestic 
author, writer, or publisher to demonstrate that the foreign 
judgment is inconsistent with the Constitution or the laws of 
the United States. Attorneys' fees are not available to the 
U.S. plaintiff in this declaratory judgment action, since it 
would be initiated by a U.S. author, reporter or publisher.
    In addition, the Committee bill, as reported, protects 
Internet service providers (defined as providers of 
``interactive computer service'' under section 230 of the 
Communications Act of 1934)\20\ from libel litigation stemming 
from the content published on its network. The bill also 
includes an important provision to ensure that a U.S. party's 
appearance in a foreign court to contest a libel lawsuit does 
not bar that party from opposing domestic enforcement of the 
judgment as provided by this legislation. Further, the bill 
provides for removal to Federal court of any enforcement action 
brought in State domestic court, where the foreign defamation 
judgment meets certain diversity requirements.
---------------------------------------------------------------------------
    \20\47 U.S.C. Sec. 230(f)(2) (2006).
---------------------------------------------------------------------------
    Finally, the Committee bill, as reported, provides further 
that it is the ``sense of Congress'' that for the purposes of 
pleading a cause of action for a declaratory judgment, a 
foreign judgment for defamation constitutes a ``case of actual 
controversy'' under section 2201(a) of title 28, United States 
Code. This provision pertains to a jurisdictional requirement 
of Article III of the Constitution requiring a case or actual 
controversy.

          II. HISTORY OF THE BILL AND COMMITTEE CONSIDERATION

    On June 9, 2009, Representative Cohen introduced H.R. 2765. 
The bill was referred to the House of Representatives Committee 
on the Judiciary, which reported it favorably by voice vote. On 
June 15, 2009, the bill passed the House of Representatives, as 
amended, by voice vote. The bill was then sent to the Senate, 
where it was referred to the Committee on the Judiciary. A full 
history of the House Judiciary Committee's consideration of 
H.R. 2765, including related hearings, can be found in House of 
Representatives Report 111-154.
    On February 23, 2010, the Senate Committee on the Judiciary 
held a hearing on ``Are Foreign Libel Lawsuits Chilling 
Americans' First Amendment Rights?''. This hearing was chaired 
by Senator Leahy. The following witnesses testified: Bruce 
Brown, Partner at Baker & Hostetler LLP; and Kurt Wimmer, 
Partner at Covington & Burling LLP. The following materials 
were submitted for the Record: statement of Dr. Rachel 
Ehrenfeld, Director of American Center for Democracy; statement 
of the American Civil Liberties Union; statement of Doug 
Rendleman, Huntley Professor Of Law at Washington and Lee Law 
School; letter from Lynne E. Bradley, Director of Government 
Relations, American Library Association; and an article 
authored by Robert D. Rachlin, Lecturer, Vermont Law School, 
entitled The Sedition Act of 1798 and the East-West Political 
Divide in Vermont.
    On June 22, 2010, Chairman Leahy introduced the SPEECH Act, 
S. 3518, which is cosponsored by Senator Sessions, Senator 
Specter, Senator Schumer, Senator Lieberman, and Senator 
Kaufman. This bill was referred to the Committee on the 
Judiciary. The following persons or groups submitted letters of 
support for the SPEECH Act: Michael B. Mukasey, former Attorney 
General; R James Woolsey, former Director, Central Intelligence 
Agency; Allan Adler, Vice President for Government and Legal 
Affairs, Association of American Publishers; Corey Williams, 
Associate Director, American Library Association; Marti Fiske, 
President, Vermont Library Association; Lucy Dalglish, 
Executive Director, Reporters Committee for Freedom of the 
Press; Dr. Rachel Ehrenfeld, Director, American Center for 
Democracy; Markham Erickson, Executive Director, NetCoalition; 
Daniel Kornstein, Partner at Kornstein, Veisz, Wexler & 
Pollard; and Floyd Abrams, of Cahill Gordon and Reindel LLP.
    On July 13, 2010, the Committee on the Judiciary considered 
H.R. 2765. One amendment was considered during this debate. 
Senator Leahy offered a substitute amendment, which was adopted 
by unanimous consent. That amendment contained the full text of 
the SPEECH Act.
    The Committee then voted to report H.R. 2765, with an 
amendment in the nature of a substitute, favorably to the 
Senate by voice vote.

              III. SECTION-BY-SECTION SUMMARY OF THE BILL

Section 1. Short title

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

Section 2. Findings

    This section contains congressional findings about the 
scope of the problem known as libel tourism.

Section 3. Recognition of foreign defamation judgments

    Subsection (a). This subsection creates a new Chapter 181 
in Part VI of title 28, United States Code, as follows--
    Sec. 4101 provides definitions.
    Sec. 4102 outlines circumstances under which domestic 
courts should not recognize a foreign defamation judgment. 
Specifically, this includes (1) First Amendment considerations, 
and the applicable burden of proof; (2) jurisdictional 
considerations, and the applicable burden of proof; (3) 
treatment of judgments against interactive computer services, 
and the applicable burden of proof; (4) treatment of 
appearances in foreign courts; and (5) rules of statutory 
construction.
    Sec. 4103 provides grounds for removal of an enforcement 
action brought in a State domestic court to a United States 
District Court.
    Sec. 4104 provides a cause of action for any United States 
person to obtain a declaratory judgment stating that a foreign 
defamation judgment entered against that person is repugnant to 
the Constitution or laws of the United States, where the 
foreign judgment would not be enforceable under the criteria 
provided in section 4102. This section also addresses the 
applicable burden of proof, and provides criteria for 
nationwide service of process.
    Sec. 4105 provides that any party opposing enforcement of 
the foreign defamation judgment who prevails in a domestic 
court may recover a reasonable attorney's fee.
    Subsection (b). This subsection provides that it is the 
``sense of congress'' that for the purposes of pleading a cause 
of action for a declaratory judgment, a foreign judgment for 
defamation constitutes a ``case of actual controversy'' under 
section 22012(a) of title 28, United States Code.
    Subsection (c). This subsection provides technical and 
conforming amendments.

             IV. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

    The Committee sets forth, with respect to the bill, H.R. 
2765, the following estimate and comparison prepared by the 
Director of the Congressional Budget Office under section 402 
of the Congressional Budget Act of 1974:

                                                     July 19, 2010.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2765, the Securing 
the Protection of our Enduring and Established Constitutional 
Heritage Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Martin von 
Gnechten.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

H.R. 2765--Securing the Protection of our Enduring and Established 
        Constitutional Heritage Act

    H.R. 2765 would prohibit U.S. district and state courts 
from enforcing foreign defamation judgments that are 
inconsistent with Constitutional protections and certain 
telecommunications laws. In general, foreign courts do not have 
jurisdiction over the United States, and U.S. courts would not 
recognize a foreign judgment against the United States. (Under 
the Federal Tort Claims Act, the federal government waived its 
sovereign immunity and consented to being sued in federal 
courts only in particular cases). Therefore, CBO estimates that 
H.R. 2765 would have no significant effect on the federal 
budget. Because the legislation would not affect direct 
spending or revenues, pay-as-you-go procedures would not apply.
    H.R. 2765 contains an intergovernmental mandate as defined 
in the Unfunded Mandates Reform Act (UMRA) because it would 
preempt state laws related to foreign judgments. CBO estimates 
that state courts would incur no significant costs to comply 
with the preemption; therefore, the costs of the mandate would 
not exceed the annual threshold established in UMRA for 
intergovernmental mandates ($70 million in 2010, adjusted for 
inflation).
    H.R. 2765 would impose private-sector mandates as defined 
in UMRA on individuals seeking to have certain foreign 
defamation judgments enforced in the United States. New 
requirements on those individuals would limit an existing right 
to recover damages and direct them to reimburse attorney's fees 
in the event a domestic court does not uphold a foreign 
judgment. The cost of the mandate would be the net value of 
forgone awards and settlements in such claims and any fees paid 
to opposing parties. Based on information about foreign 
defamation cases, CBO expects that the cost of the mandates 
would fall below the annual threshold established in UMRA for 
private-sector mandates ($141 million in 2010, adjusted 
annually for inflation).
    On June 12, 2009, CBO transmitted a cost estimate for H.R. 
2765, a bill 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, as ordered reported by the House Committee 
on the Judiciary on June 10, 2009. The two versions of the 
legislation are similar, and the CBO cost estimates are the 
same.
    The CBO staff contacts for this estimate are Martin von 
Gnechten (for federal costs) and Marin Randall (for the 
private-sector impact). This estimate was approved by Theresa 
Gullo, Deputy Assistant Director for Budget Analysis.

                    V. REGULATORY IMPACT EVALUATION

    In compliance with rule XXVI of the Standing Rules of the 
Senate, the Committee finds that no significant regulatory 
impact will result from the enactment of H.R. 2765.

                             vi. conclusion

    The SPEECH Act will ensure that no domestic court can be 
used to diminish the First Amendment rights of American 
authors, reporters and publishers by enforcing a foreign libel 
judgment that is inconsistent with U.S. law. Moreover, the bill 
provides a new affirmative cause of action for any U.S. citizen 
who is the victim of a foreign defamation judgment that is 
inconsistent with the First Amendment or the due process 
guarantees of the U.S. Constitution. This bill will prevent the 
chilling of American free speech that is the inevitable result 
of these foreign libel lawsuits.

                         vii. additional views

                              ----------                              


                    ADDITIONAL VIEWS OF SENATOR KYL

    The complementary freedoms of speech and the press 
enshrined by our founding fathers in the First Amendment are 
cornerstones of American society. As Thomas Jefferson famously 
said, ``Our liberty cannot be guarded but by the freedom of the 
press, nor that be limited without danger of losing it.'' The 
importance of these freedoms has not diminished with time.
    Regrettably, many other countries place lesser value on 
free expression and do not provide the strong legal protection 
for speech and the press that exists in the United States. 
These nations' judicial systems have, in many instances, become 
home to a practice known as ``libel tourism,'' which occurs 
when an individual brings a libel or defamation suit against an 
American in a country with less protective free speech laws. 
Plaintiffs are increasingly engaging in global forum shopping 
in an effort to silence journalists, authors, publishers, and 
others who are merely exercising their First Amendment rights.
    There can be no doubt that American citizens' rights of 
free expression are being abridged by this practice. Indeed, 
some Americans are falling victim to an international race to 
the bottom--they are able to write or publish only material 
that would be allowed in countries with the weakest free speech 
protections.
    Although libel tourism conflicts with American values, it 
has proven to be an effective way to silence criticism. Several 
high profile cases illustrate how libel tourism stifles free 
speech, perhaps none better known than the case of Rachel 
Ehrenfeld. In 2003, Dr. Ehrenfeld published Funding Evil: How 
Terrorism is Financed and How to Stop It, which detailed how 
Saudi billionaire Khalid bin Mahfouz financed terrorism. In 
response, bin Mahfouz and two members of his family filed suit 
against Dr. Ehrenfeld in Britain to take advantage of that 
country's expansive libel laws. Despite the fact that neither 
the plaintiff nor the defendant was a British citizen, the 
courts permitted the case. Dr. Ehrenfeld refused to acknowledge 
the jurisdiction of the British court and chose not to defend 
the action. The British court issued a default judgment and 
ordered Dr. Ehrenfeld to pay each plaintiff 10,000 
(and their accompanying legal fees), apologize, and destroy 
existing copies of her book.
    Dr. Ehrenfeld was not bin Mahfouz's only victim. Reports 
indicate he has sued or threatened suit in Britain at least 33 
times in order to silence those who have accused him of 
knowingly funding terrorism. He has taken similar legal actions 
in Belgium, France and Switzerland.
    The record is clear that libel judgments can lead to the 
financial ruin of authors and severely restrict their ability 
to publish in the future. Moreover, the mere prospect of a 
meritless foreign libel suit can chill speech by deterring the 
publication of books and articles that may subject the author 
to financial loss and reputational harm.
    Libel tourism also affects publishers. In 1997, Russian 
oligarch Boris Berezovsky sued Forbes magazine in a British 
court for publishing an article accusing him of substantial 
illegal activities and ties to organized crime. Rather than 
engage in a prolonged legal battle, Forbes reportedly settled 
with Mr. Berezovsky. Subsequently, Brazil issued a warrant for 
Mr. Berezovsky's arrest on charges of fraud and money 
laundering.
    Several states including New York, Illinois, California and 
Florida have taken action to prevent their citizens from 
suffering the penalties of foreign libel judgments; however, 
Federal action is necessary to ensure that all Americans are 
protected by the rights they are afforded under U.S. law.
    This bill takes important steps toward achieving this goal. 
First, the bill would protect U.S. citizens by barring the 
enforcement of baseless foreign libel judgments in the United 
States. It would also permit U.S. citizens targeted by foreign 
libel judgments to seek and obtain a declaratory judgment in 
U.S. court that a foreign libel judgment is repugnant to the 
Constitution or laws of the United States. This will help U.S. 
victims of libel tourism clear their names. Because a libel 
judgment can prevent an author from publishing in the future, 
this section is critical to protecting Americans from the 
destructive effects of libel tourism.
    Finally, the bill takes an initial step toward making 
practitioners of libel tourism financially responsible for 
their actions. Specifically, the bill would allow Americans to 
recover attorney's fees incurred defending themselves against 
efforts to enforce a foreign libel judgment's enforcement in 
the United States.
    But this bill will not, standing alone, eliminate the harm 
caused to Americans by baseless foreign libel lawsuits. After 
all, many plaintiffs never seek to enforce their judgments in 
the United States; Bin Mahfouz, for example, was content to 
deter publishers from distributing books overseas. And this law 
does not provide any recourse to Americans who have had foreign 
assets attached by a foreign court.
    We believe that the Congress needs to pass broader measures 
that permit U.S. citizens accused of libel in foreign courts to 
force their accusers to pay for legal fees incurred abroad and, 
in certain cases, additional damages. Libel tourism will 
continue to pose problems for Americans until those who bring 
foreign libel lawsuits are faced with the same kinds of 
financial risks they seek to inflict on others.
    We support this bill as a good first step toward addressing 
an important problem, but there is more that can, and should, 
be done. We look forward to working on additional measures to 
protect Americans from efforts to infringe on their free speech 
rights.

                                                           Jon Kyl.
      viii. changes to existing law made by the bill, as reported

    Pursuant to paragraph 12 of rule XXVI of the Standing Rules 
of the Senate, the Committee finds no changes in existing law 
made by H.R. 2765, as ordered reported.