by Paul Alan Levy
Today President Obama signed the libel tourism bill, HR 2765, that protects against enforcement within the United States of defamation judgments obtained abroad that are inconsistent with the protections of the First Amendment, 28 USC § 1402(a) and with the limits imposed on personal jurisdiction by the Due Process Clause. 28 USC § 1402(b). In addition, under a provision of the law inserted at the suggestion of Public Citizen, foreign defamation judgments are unenforceable against the providers of interactive computers services, such as the hosts message boards and blogs, if inconsistent with Section 230 of the Communications Decency Act (which protects against liability for content provided by others). 28 USC § 1402(c). The text of the statute appears here.
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."
As passed, the legislation provides for attorney fee awards to parties who successfully resist the enforcement of foreign defamation judgments under the new law, § 1405, and allows a party to seek a declaratory judgment barring enforcement of foreign defamation judgments that do not meet the law's standards. § 1404.
Representative Steve Cohen of Memphis, who was the main sponsor of the libel tourism bill, is also the main sponsor of the proposed Federal anti-SLAPP statute that is designed to protect more generally against meritless lawsuits brought in the United States by companies and politicians to suppress free speech. The new Public Participation Project is pressing that legislation forward, and we will look forward to that signing ceremony as well.