NCPA - National Center for Policy Analysis


July 17, 2008

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, say Sens. Arlen Specter (R-Penn.) and Joe Lieberman (I- Conn).

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:

  • 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.
  • Consequently, English courts have become a popular destination for libel suits against American authors.

To counter a growing trend of lawsuits against American authors, Specter and Lieberman have introduced the Free Speech Protection Act of 2008.  This bill would:

  • 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.
  • Permit American authors and publishers to countersue if the material is protected by the First Amendment.
  • Give juries the ability to award tremble damages if they find that the foreign suit is part of a scheme to suppress free speech rights.

This legislation would not shield those who recklessly or maliciously print false information; it would simply ensure that Americans are held to and protected by American standards, say Specter and Lieberman.

Source: Arlen Specter and Joe Lieberman, "Foreign Courts Take Aim at Our Free Speech," Wall Street Journal, July 14, 2008.

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