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More on “Libel Tourism”



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Clifford D. May has an article sounding the alarm on the main site, and trumpeting the Free Speech Protection Act of 2008. Obviously, this is an issue of concern for academics, especially those who write about foreign folks, including terrorists, who don’t like the attention and might sue in other countries.

But like so many who get worried about this, he seems not to realize a few things. As I wrote here previously, regarding Rachel’s Law:

Today, each court system is pretty much on its own. In other words, if [a book or article] is available in England (it’s irrelevant how many copies it sells, just like in America), you can sue the author there. That’s a pain and everything, but (A) it’s their country and their courts, and they should do with them as they please, and (B) what Rachel’s Law proponents gloss over is that even in the current system, U.S. courts normally do not enforce other countries’ libel judgments — particularly if they are inconsistent with the First Amendment. I am neither a lawyer nor a human encyclopedia, but I can’t find a single exception. In Matusevitch v. Telnikoff, for example, an American court explicitly refused to enforce a British libel judgment, and based its decision on the disconnect between British and American libel law.

Rachel Ehrenfeld herself points out that “the 1965 Uniform Foreign Money-Judgment Recognition Act allows the enforcement of foreign monitory judgments in the U.S.,” but declines to mention the de facto libel exception. In her case, she, not the person who sued her (and won) in Britain, brought the matter before the American court system. The court declined to get involved, because the person who’d sued her in Britain did not fall under the jurisdiction of American courts. She was never in danger of an American court demanding she pay up.

I supported Rachel’s law — I just didn’t think it would make that much of a difference. It would basically make explicit the already-standard practice of U.S. courts not enforcing foreign libel judgments unless said judgments mesh with the First Amendment.

I also support the Free Speech Protection Act. It won’t make much of a difference either, but the resulting lawsuits should be pretty funny: The act gives Americans the right to sue back. So if this goes into effect, a foreigner can sue an American in a foreign country, and get a judgment. And then an American can countersue in America, and get a judgment. And neither has to pay the other!



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