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Are Foreign Libel Lawsuits Chilling Americans’ First Amendment Rights?

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Are Foreign Libel Lawsuits Chilling Americans’ First Amendment Rights? S. HRG. 111–586 ARE FOREIGN LIBEL LAWSUITS CHILLING AMERICANS’ FIRST AMENDMENT RIGHTS? HEARING BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED ELEVENTH CONGRESS SECOND SESSION FEBRUARY 23, 2010 Serial No. J–111–73 Printed for the use of the Committee on the Judiciary ( U.S. GOVERNMENT PRINTING OFFICE 57–951 PDF WASHINGTON : 2010 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001 VerDate Nov 24 2008 12:41 Sep 13, 2010 Jkt 057951 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 S:\GPO\HEARINGS\57951.TXT SJUD1 PsN: CMORC COMMITTEE ON THE JUDICIARY PATRICK J. LEAHY, Vermont, Chairman HERB KOHL, Wisconsin JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa CHARLES E. SCHUMER, New York JON KYL, Arizona RICHARD J. DURBIN, Illinois LINDSEY GRAHAM, South Carolina BENJAMIN L. CARDIN, Maryland JOHN CORNYN, Texas SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma AMY KLOBUCHAR, Minnesota EDWARD E. KAUFMAN, Delaware ARLEN SPECTER, Pennsylvania AL FRANKEN, Minnesota BRUCE A. COHEN, Chief Counsel and Staff Director MATT MINER, Republican Chief Counsel (II) VerDate Nov 24 2008 12:41 Sep 13, 2010 Jkt 057951 PO 00000 Frm 00002 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\57951.TXT SJUD1 PsN: CMORC C O N T E N T S STATEMENTS OF COMMITTEE MEMBERS Page Franken, Hon. Al, a U.S. Senator from the State of Minnesota .......................... 3 Kyl, Hon. Jon, a U.S. Senator from the State of Arizona .................................... 3 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1 prepared statement .......................................................................................... 87 WITNESSES Brown, Bruce D., Partner, Baker Hostetler, LLP, Washington, DC ................... 6 Wimmer, Kurt A., Partner, Covington & Burling LLP, Washington, DC .......... 3 QUESTIONS AND ANSWERS Responses of Kurt A. Wimmer and Bruce D. Brown to questions submitted by Senator Whitehouse ........................................................................................ 24 SUBMISSIONS FOR THE RECORD American Civil Liberties Union, Michael W. Macleod-Ball, Chief Legislative and Policy Counsel, Washington, DC, statement .............................................. 27 American Library Association, Lynne E. Bradley, Director, Washington, DC, letter ...................................................................................................................... 32 Brown, Bruce D., Partner, Baker Hostetler, LLP, Washington, DC, statement and attachment .................................................................................................... 34 Ehrenfeld, Rachel, Director, American Center for Democracy, Washington, DC, statement ...................................................................................................... 82 Rachlin, Robert D., essay ........................................................................................ 90 Rendleman, Doug, Professor, Law at Washington and Lew Law School, Lex- ington, Virginia, statement ................................................................................. 124 Wimmer, Kurt A., Partner, Covington & Burling LLP, Washington, DC .......... 125 (III) VerDate Nov 24 2008 12:41 Sep 13, 2010 Jkt 057951 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\57951.TXT SJUD1 PsN: CMORC VerDate Nov 24 2008 12:41 Sep 13, 2010 Jkt 057951 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\57951.TXT SJUD1 PsN: CMORC ARE FOREIGN LIBEL LAWSUITS CHILLING AMERICANS’ FIRST AMENDMENT RIGHTS? TUESDAY, FEBRUARY 23, 2010 U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC The Committee met, Pursuant to notice, at 10:06 a.m., in room SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, Chairman of the Committee, presiding. Present: Senators Leahy, Whitehouse, Specter, Franken, Ses- sions, and Kyl. OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT Chairman LEAHY. First off, I will apologize for a little laryngitis from a week up in Vermont last week. I was delighted to be there. We do not seem to have the problems with snow that they do in the Washington area, although that is not always so. Over New Year’s weekend, I know in Burlington they had 34 inches of snow, and two of the schools had to open an hour late on Monday. On Monday. I have determined that in Washington if terrorists could learn how to make it snow, that is all they would need to stop the Government forever. Anyhow, that has nothing to do with this hearing, and the views expressed do not necessarily represent the views of the sponsor of the U.S. Senate, or something like that. But today’s hearing, though, is on a very serious matter. It fo- cuses on how lawsuits brought against American reporters and publishers in foreign courts are affecting our First Amendment rights here in America. When the Supreme Court issued its landmark ruling in New York Times v. Sullivan over 40 years ago, Justice Brennan noted that ‘‘debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.’’ I agreed at that time with Justice Brennan, and even though, like everybody in public office, I have felt the occasional stings—Senator Franken, why don’t you come on up here? Though I have felt the stings of what might come out of the result of New York Times v. Sullivan, I would not change that decision one iota. The role that American authors, reporters, and publishers play in our democracy is essential. Although they are protected under our First Amendment in American courts—and, interestingly enough, when the First Amendment was adopted, if you go back and read some of the things that were printed in the various broad- (1) VerDate Nov 24 2008 12:41 Sep 13, 2010 Jkt 057951 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\57951.TXT SJUD1 PsN: CMORC 2 sides and all, I mean, they were scathing on political leaders, and yet we adopted the First Amendment. Many other countries, though, even a couple hundred years later, have not offered similar protections. When plaintiffs travel to countries where there is no regard for freedom of the press to sue American authors or pub- lishers, that has come to be known as ‘‘libel tourism.’’ Often, the publication at issue was not directed to that foreign country. In many cases, the plaintiff has no connection to the foreign forum. The foreign court has been chosen simply because of its plaintiff- friendly libel laws. Now, due to the worldwide dissemination of materials through the Internet, as well as the international publication of U.S. news- papers, such lawsuits threaten to dramatically alter the quality of public debate both here and abroad. And as the son of a Vermont printer, and son of a man who once published a weekly newspaper in Vermont, this is an issue I take very seriously. Whether it is an American institution like the New York Times or a popular blog like The Huffington Post, modern technology al- lows reports to be read around the world instantly regardless of the author’s intent to target a foreign market. In other words, the au- thor may well have intended this for a particular group here in the United States, but it can be read anywhere in the world. If Amer- ican authors and publishers run the risk of foreign lawsuits with every article or book that they write, then there is going to be a race to the bottom. It is going to be the most chilling and restric- tive standards that will be followed. And this potential chilling ef- fect will in turn deprive Americans of the kind of candid com- mentary and uninhibited information that our laws are designed to foster and protect. Two libel tourism bills are pending before this Committee. They both address what role American courts should play in protecting the First Amendment rights enshrined in the U.S. Constitution. Now, as much as we might like to, we cannot legislate changes in foreign law to simply eliminate libel tourism. We all know that. But I would hope that we could all agree and I would hope this could be a bipartisan agreement that our courts—our courts— should not become a tool to uphold foreign libel judgments that would undermine the First Amendment or due process rights. Mak- ing that explicit with Federal legislation makes sense. When I was growing up, it was almost an article of faith in our family that the First Amendment was as important a part as any— more important than most—in our Constitution. It gives you the right to practice any religion you want or none if you want. It pro- tects your right of free speech. If you protect those things in your Constitution, you protect diversity and you protect democracy. With such diversity guaranteed and protected, then you have a democ- racy. And I think you have to make that explicit with Federal legis- lation. They say that protections in our courts are going to continue for Americans. Whether the U.S. Congress should pass legislation creating an unprecedented retaliatory cause of action in American courts, of course, is a tougher question. I thank Senator Whitehouse, who is the Chairman of the Sub- committee on Administrative Oversight and the Courts, for co- VerDate Nov 24 2008 12:41 Sep 13, 2010 Jkt 057951 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\57951.TXT SJUD1 PsN: CMORC 3 chairing this hearing. I thank Senator Franken, who has long dis- cussed such issues, for being here. And I thank those who are here. Do you want to say anything? STATEMENT OF HON. AL FRANKEN, A U.S. SENATOR FROM THE STATE OF MINNESOTA Senator FRANKEN. Well, as someone who has written and been sued here and won, this is of interest to me, and so I did not have an opening statement prepared, but I look forward to the testi- mony. Chairman LEAHY. For which you have a passing interest.
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