NCPA - National Center for Policy Analysis


January 13, 2009

The farce of foreigners suing Americans for defamation in overseas forums, where the law does not sufficiently protect free speech, is so well-known that it has a fitting nickname: libel tourism. And London is its hot destination. Particularly since 9/11, foreign nationals have cynically exploited British courts in an attempt to stifle any discussion by American journalists about the dangers of jihadist ideology and terrorist supporters.

At long last, U.S. politicians are waking up to the dangers posed by libel tourism, which threatens both the First Amendment and American national security.  The trouble is that their efforts, though well-intentioned, are relatively toothless and constitutionally problematic, say David Rivkin and Bruce Brown, partners at Baker Hostetler LLP:

  • Early last year, New York passed the nation's first anti-libel tourism law that allows state courts to assert authority over foreign citizens based solely on a libel judgment they have obtained abroad against a New Yorker.
  • Under the New York law, the target of a foreign libel suit does not even have to defend himself overseas; if a judgment is entered against him, he can seek a declaration that the foreign tribunal did not live up to First Amendment standards and therefore its ruling cannot be enforced against his U.S. assets.
  • While emotionally satisfying, it does not protect a libel tourism victim's assets outside the United States, and U.S courts have never before claimed jurisdiction over individuals who have no ties whatsoever to the United States, other than suing an American in a foreign court.

However, it's a mistake to respond to libel tourism by seeking to catch foreign plaintiffs with no U.S. contacts in our jurisdictional net.  It is high time for a strategy that would stop libel tourists dead in their tracks, without sacrificing constitutional values, says Rivkin and Brown:

  • A proper federal libel tourism bill would punish conduct that takes place overseas by utilizing the well recognized congressional authority to apply U.S. laws extraterritorially when compelling interests demand it.
  • The Alien Tort Statute, for example, gives U.S. courts subject matter jurisdiction over brutal acts that violate the "law of nations" wherever they may occur.
  • More recently, Congress has created civil remedies to enable victims of international terrorism and human trafficking to sue in our courts for money damages.

Source: David B. Rivkin Jr. and Bruce D. Brown, "'Libel Tourism' Threatens Free Speech," Wall Street Journal, January 10-11, 2009.

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