Libel Tourism Meets a Formidable Opponent: The First Amendment

July 16, 2008

On Monday, The Wall Street Journal featured an op-ed on libel tourism authored by United States Senators Arlen Specter of Pennsylvania and Joe Lieberman of Connecticut. In the column, entitled "Foreign Courts Take Aim at Our Free Speech," the Senators write:

Our Constitution is one of our greatest assets in the fight against terrorism. A free-flowing marketplace of ideas, protected by the First Amendment, enables the ideals of democracy to defeat the totalitarian vision of al Qaeda and other terrorist organizations.

That free marketplace faces a threat. Individuals with alleged connections to terrorist activity are filing libel suits and winning judgments in foreign courts against American researchers who publish on these matters. These suits intimidate and even silence writers and publishers.

Under American law, a libel plaintiff must prove that defamatory material is false. In England, the burden is reversed. Disputed statements are presumed to be false unless proven otherwise. And the loser in the case must pay the winner’s legal fees.

Robert posted about this disturbing phenomenon last month on The Torch, making clear the potential threat to universities and other American institutions:

Through libel tourism, deep-pocketed foreigners with political axes to grind could threaten many institutions, from universities to think-tanks to academic presses, with the unpalatable choice of either spending tens of thousands of dollars to defend free speech in a foreign court or simply squelching the free speech and academic freedom of their students, professors, and researchers. For too many institutions without the will or wherewithal to fight the libel tourists, that decision will be all but made for them. That would truly prove an ominous development for the American ideal of unfettered free speech and academic freedom.

And this, the Senators declare, is why they are presenting the Free Speech Protection Act of 2008 to the Senate; a companion bill is being presented to the House. If it becomes law, the bill will bar

U.S. courts from enforcing libel judgments issued in foreign courts against U.S. residents, if the speech would not be libelous under American law. The bill also permits American authors and publishers to countersue if the material is protected by the First Amendment.

University faculties, publishers, and FIRE will be paying close attention to this bill.