Representative Steve Cohen (D-TN) represents the people of Memphis, TN. His district also includes Graceland. That can’t be a coincidence, because he is the Congressional King of Free Speech legislation.
Cohen sponsored HR 2765, the Libel Tourism bill, and Obama signed it into law on Tuesday. The new law now protects Americans from defamation judgments that plaintiffs might obtain abroad — in countries where free speech receives less protection than it does in the USA. The need for such a law arose back when American author Rachel Ehrenfeld wrote a book, “Funding Evil: How Terrorism is Funded and How to Stop It,” and published it in New York. A Saudi, Khalid Bin Mahfouz, did not appreciate how he was portrayed in the book — as a major financier of terrorism. He filed suit in the U.K., and based on the sale of 23 copies sold in England, the U.K. court exercised jurisdiction over Ehrenfeld. She refused to appear, so the judge entered a default judgment against her for $225,000. (source)
There is a reason that Bin Mahfouz chose to file suit in the U.K. Britain’s libel laws are very favorable to plaintiffs, and they don’t have a pesky First Amendment
Bill of Rights to get in the way of wealthy plaintiffs attempts to trample on others free speech rights.
Bin Mahfouz is one of the world’s most notorious libel tourists, having used or threatening to use plaintiff-friendly British courts to sue for libel at least 36 times since 2002. (source)
The next time Bin Mahfouz decides to sue an American in the UK, he is going to need to obtain the judgment by getting the UK court to impose First Amendment protections as well as Due Process considerations.
But wait, there’s more. Our heroes over at Public Citizen lobbied for an additional measure to be added to the bill. The bill also provides new strength to Section 230.
The discussion on the floor just before passage recognizes the need to extend section 230 protection because, otherwise, plaintiffs are tempted to try to suppress speech “by suing a third-party interactive computer service, rather than the actual author of the offending statement. In such circumstances, the service provider would likely take down the allegedly offending material rather than face a lawsuit. Providing immunity removes this unhealthy incentive to take down material under improper pressure.” (source)
Here’s the beautiful thing about this: Without this addition to the law, web hosting companies and other “interactive service providers” would likely have become the targets for libel tourism suits. Libel tourists, frustrated by their attempts to impose foreign libel standards on American speakers, would simply have sued the service providers. Since Section 230 only protects you in U.S. courts, that might have meant that American service providers would have simply become collateral damage in the fight against free speech.
Now, even if a service provider is the target of a foreign libel suit, the foreign court will either need to apply Section 230, or its judgment will not be enforceable in the United States. This creates a pretty good incentive for some online service providers to locate their businesses inside the United States.
The Legal Satyricon would like to extend its First Amendment Bad Ass award to Cohen — our only two-time winner. At the same time, we are also joyfully compelled to extend the award to Paul Allen Levy and his team at Public Citizen. Boys, your country is in your debt.
If we can get a national anti-SLAPP law on the books — another project that Rep. Cohen is working on — we may find that the First Amendment is entering a period of renaissance.