Senate Passes SPEECH Act

Earlier this week, the U.S. Senate passed a bill aimed at protecting Americans from foreign defamation judgments. S. 3518, the Securing the Protection of our Enduring and Established Constitutional Heritage Act, is also known as the "SPEECH Act".

Under the First Amendment to the U.S. Constitution, abridging the freedom of speech and of the press is prohibited. In keeping with this principle, in the United States, a public figure asserting a libel claim against must prove that the accused party: (1) made a statement about the public figure that is false and defamatory; and (2) acted with "actual malice" in making the statement.

Other nations to not afford the same free speech protections. Complicating matters, U.S. Courts commonly enforce foreign judgments. Thus, to avoid the free speech protections of U.S. law, in recent years some public figures have taken to suing their critics in countries, such as the U.K., whose law requires writers to prove the truth of their statements, rather than requiring the plaintiff to prove their falsity. With the burden shifted to the writer, the public figure is much more likely to prevail. Once a judgment is obtained in the foreign jurisdiction, it can often be reduced to an enforceable judgment in the United States.

For example, in 2003, Dr. Rachel Ehrenfeld wrote the book, “Funding Evil: How Terrorism Is Financed — and How to Stop It.” In her book, Dr. Ehrenfeld accused a Saudi businessman of providing financial support to Al Qaeda prior to Sept. 11, 2001The businessman, Khalid bin Mahfouz, sued Dr. Ehrenfeld in the U.K. and won. The British judge ordered Dr. Ehrenfeld to pay Mr. Mahfouz and his children damages and their legal costs.

The SPEECH Act seeks to prevent such results in the future. It recognizes that "[t]he 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." If passed, it would prohibit U.S. Courts from recognizing or enforcing foreign defamation judgments unless 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" both the First Amendment and the constitution and law of the state in which the U.S. Court is located.

If that level or protection is not afforded, the foreign judgment can only be recognized and enforced if the court determines that the accused party would nevertheless have been found liable for defamation by a court in the United States applying the First Amendment and the constitution and law of the State in which the court is located. The bill also places the burden of establishing that these standards are satisfied on the party seeking to enforce the foreign judgment.

Dr. Ehrenfeld has been a vocal supporter of the SPEECH Act, which she has described as a "critical step in the defense of American national security and the freedoms of expression that form the cornerstone of our democracy."

The text of the SPEECH Act is available here.