« Justice Scalia's One-Way Ratchet: Congress and Federal Habeas Jurisdiction | Main | Mais Oui: Law and Society 2008, Montreal »

Tuesday, May 20, 2008

Personal Jurisdiction and the Free Speech Protection Act

Identical companion bills have been introduced in the House (H.R. 5814) and Senate (S. 2977), both entitled the Free Speech Protection Act of 2008. The bills aim to eliminate "libel tourism," where foreign plaintiffs obtain foreign (usually European) defamation judgments against U.S. authors and speakers, in cases where the speech at issue would be protected under New York Times and the First Amendment. The concern, as the introductions make clear, is that the threat of foreign litigation will have a chilling effect on First Amendment activities in the United States. The bill creates a federal cause of action for the U.S. speaker to sue the foreign plaintiff to prevent enforcement of the foreign judgment and to recover damages, unless the United States court determines that the speech at issue would have constituted actionable defamation under the First Amendment. New York recently enacted its own Libel Terrorism Protection Act that does the same thing as to New York persons. (H/T: First Amendment Law Prof Blog and First Amendment Center).

Solely as to stopping enforcement of the foreign judgment, none of this is entirely necessary. Under current law, the U.S. speaker (foreign defendant/judgment debtor) could assert the First Amendment as a defense to a domestic enforcement action. Alternatively (and more commonly), the U.S. speaker could file a pre-enforcement action against the foreign plaintiff (judgment creditor) for a declaratory judgment establishing that the foreign judgment is unenforceable under the First Amendment and for an injunction prohibiting domestic enforcement of the foreign judgment.

But the bills seek to correct several problems that speakers have encountered in trying to raise First Amendment defenses to enforcement in the United States. The first, and the real driving force behind the enactments, is personal jurisdiction.

The New York law is a fairly direct response to Ehrenfeld v. Mahfouz in New York. Ehrenfeld is the author of Funding Evil: How Terrorism is Financed--And How to Stop It, which alleges that a number of people, including Mahfouz, a Saudi banker, financed Al Qaeda and other terrorist groups. Mahfouz won a defamation default judgment against Ehrenfeld in England (whose libel laws are notoriously pro-plaintiff). Ehrenfeld then filed a pre-enforcement action in federal court in New York, but it ultimately was dismissed for lack of personal jurisdiction, when the New York Court of Appeals, on certification from the Second Circuit, decided that its Long Arm Statute did not reach Mahfouz, whose contacts with New York were limited to sending letters and other documents from the English litigation (the complaint, the court order).

The new state law amends New York's Long Arm Statute to allow for personal jurisdiction over a foreign person who obtains a foreign defamation judgment, in a declaratory judgment action challenging the constitutional enforceability of the foreign judgment, if the article was published in New York and the speaker (the foreign defendant/domestic plaintiff) is amenable to New York jurisdiction and has property or assets in New York. The proposed federal laws are similar, providing for jurisdiction within the United States as a whole over any person who files a foreign lawsuit against "a United States person," where the United States person has assets in the United States against which the foreign plaintiff might execute the judgment.

But in trying to accord speakers additional protection, the proposals raise some interesting and open issues relating to due process and personal jurisdiction. The jurisdiction granted by the federal and state legislation only is constitutional under the "effects test" of Calder v. Jones, which requires that a defendant direct conduct at a state, intending to cause effects in that state, where some (if not the brunt of) harm will be felt in that state. But it is not clear that Calder is satisfied solely by filing a lawsuit against a resident of a state (or the United States as a whole), with no other contacts with, or conduct directed at, the forum.

Of course, in most cases, the foreign plaintiff will do more than simply sue the forum resident for defamation; he likely will send papers, letters, and other correspondence relating to the foreign lawsuit to the forum resident. In Ehrenfeld, for example, Mahfouz sent multiple cease-and-desist letters to New York, served court papers on her in New York (the complaint, the final court order), and sent multiple correspondence relating to the foreign lawsuit. But it is an open question whether that is enough. Lower courts are split on whether the effects-test conduct must be tortious or whether contacts such as sending lawful letters and legal documents is sufficient; the en banc Ninth Circuit, in the most high-profile case of this kind, has said conduct need not be tortious and legal correspondence is sufficient. The Second Circuit did not reach the issue in Ehrenfeld.

A lot of commentators (especially internet and IP scholars, where the test most often rears its head) criticize the effects test because of its potential breadth and reach. And the situations addressed in these laws would expand that test even further, by permitting jurisdiction over an absent defendant based only on a few or one instances of perfectly lawful, and constitutionally protected, conduct--filing a civil lawsuit. This will be an interesting test of just what effects entail for due process purposes--and maybe a new opportunity for the Supreme Court to take a personal jurisdiction case, something it has not done since 1990.

Posted by Howard Wasserman on May 20, 2008 at 03:37 PM in Law and Politics | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Personal Jurisdiction and the Free Speech Protection Act:


This article reminded me of the long threatened liable action by Richard Perle that he claimed he was going to file in the UK against his domestic enemies in the press (Seymour M. Hersh in this case) back in the USA.

The threat was made to chill free speech. This exactly the sort of thing the new bill is intended to stop. Get it done Congress. Make sure bloggers are covered.

Posted by: jjray | Mar 19, 2009 7:19:15 AM

The comments to this entry are closed.