22810 CONGRESSIONAL RECORD—HOUSE, Vol. 154, Pt. 16 September 27, 2008 LOFGREN, as much time as she may constrained by the first amendment and thus It prohibits a federal or state court from en- need. may provide less protection to defamation forcing a defamation judgment entered in an- Ms. ZOE LOFGREN of California. I defendants than our Constitution requires. other country for publication involving a matter would certainly like to commend Con- (5) While our Nation’s courts will generally enforce foreign judgments as a matter of of public concern, unless the court first deter- gressman RODRIGUEZ and Senator comity, comity does not require that courts mines that the judgment is consistent with the SCHUMER. This is a measure that I sup- enforce foreign judgments that are repug- free-speech clause of our Constitution’s First port. nant to our Nation’s fundamental constitu- Amendment. Mr. Speaker, I would just like to note tional values, in particular its strong protec- H.R. 6146 responds to the problem of what there is another measure that we have tion of the right to freedom of speech. is sometimes called ‘‘libel tourism.’’ This is the marked up in the Judiciary Committee (6) Our Nation’s courts should only enforce disturbing practice of suing authors for defa- that would broadly assist our Amer- foreign judgments as a matter of comity mation in foreign countries rather than in the ican soldiers and their families. I hope when such foreign judgments are consistent United States, so as to avoid the speech-pro- with the right to freedom of speech. that in the same spirit of collaboration (b) PURPOSE.—The purpose of this Act is to tective features of defamation law enshrined in we see this evening, we will be able to protect the right to freedom of speech under our Constitution. achieve that wonderful advance for the the first amendment to the Constitution of A much-cited recent example is the lawsuit fathers, mothers, wives, spouses, and the United States from the potentially weak- filed by a Saudi billionaire against an Amer- sons and daughters of our brave Amer- ening effects of foreign judgments con- ican expert on terrorism, as a result of state- ican soldiers. cerning defamation. ments about his activities she made in a book Mr. CONYERS. Mr. Speaker, I yield SEC. 2. RECOGNITION OF FOREIGN DEFAMATION entitled Funding Evil: How Terrorism Is Fi- back the balance of my time. JUDGMENTS. nanced and How to Stop It. (a) IN GENERAL.—Part VI of title 28, United The SPEAKER pro tempore. The States Code, is amended by adding at the end The Saudi billionaire sued the American au- question is on the motion offered by the following: thor not in the United States, where the book the gentleman from Michigan (Mr. ‘‘CHAPTER 181—FOREIGN JUDGMENTS was published, but in England, where a mere CONYERS) that the House suspend the 23 copies of the book had been sold to on-line ‘‘Sec. rules and pass the Senate bill, S. 2840. ‘‘4101. Recognition of foreign defamation buyers. The question was taken. judgments. He sued in England to avail himself of The SPEAKER pro tempore. In the ‘‘§ 4101. Recognition of foreign defamation English libel law, which denies authors the im- opinion of the Chair, two-thirds being judgments portant free-speech protections of our First in the affirmative, the ayes have it. ‘‘(a) FIRST AMENDMENT CONSIDERATIONS.— Amendment. This kind of end-run on the Con- Mr. SMITH of Texas. Mr. Speaker, I Notwithstanding any other provision of Fed- stitution poses an obvious threat to free object to the vote on the ground that a eral or State law, a domestic court shall not speech rights in our country. quorum is not present and make the recognize or enforce a foreign judgment for H.R. 6146, which was introduced by our col- point of order that a quorum is not defamation that is based upon a publication league, STEVE COHEN of Tennessee, would go present. concerning a public figure or a matter of a long way toward eliminating this threat. At The SPEAKER pro tempore. Pursu- public concern unless the domestic court de- the same time, it would not interfere with the ant to clause 8 of rule XX and the termines that the foreign judgment is con- sistent with the first amendment to the Con- judicial systems of other countries, or deprive Chair’s prior announcement, further stitution of the United States. plaintiffs of their choice of forum. proceedings on this motion will be ‘‘(b) DEFINITIONS.—For purposes of this sec- It would simply require that anyone who postponed. tion: seeks to enforce this specific type of defama- The point of no quorum is considered ‘‘(1) DOMESTIC COURT.—The term ‘domestic tion judgment in our courts to establish that withdrawn. court’ means a State court or a Federal the judgment does not offend our First court. f Amendment. Many U.S. courts already impose ‘‘(2) FOREIGN COURT.—The term ‘foreign this condition on the enforcement of foreign PROHIBITING RECOGNITION AND court’ means a court, administrative body, defamation judgments. ENFORCEMENT OF FOREIGN or other tribunal of a foreign country. I urge my colleagues to support this impor- DEFAMATION JUDGMENTS ‘‘(3) FOREIGN JUDGMENT.—The term ‘foreign judgment’ means a final judgment rendered tant bill. Mr. CONYERS. Mr. Speaker, I move by a foreign court.’’. Mr. Speaker, I yield to the author of to suspend the rules and pass the bill (b) CLERICAL AMENDMENT.— The table of the measure, STEVE COHEN, the gen- (H.R. 6146) to amend title 28, United chapters for part VI of title 28, United States tleman from Memphis, Tennessee, as States Code, to prohibit recognition Code, is amended by adding at the end the much time as he may consume. and enforcement of foreign defamation following: Mr. COHEN. I want to thank the judgments, as amended. ‘‘181. Foreign Judgments ...... 4101’’. chairman for his courtesies and the The Clerk read the title of the bill. The SPEAKER pro tempore. Pursu- ranking member in helping bring this The text of the bill is as follows: ant to the rule, the gentleman from bill to the floor today. H.R. 6146 Michigan (Mr. CONYERS) and the gen- Mr. Speaker, I rise today in support Be it enacted by the Senate and House of Rep- tleman from Texas (Mr. SMITH) each of H.R. 6146, which I introduced with resentatives of the United States of America in will control 20 minutes. Congressman ISSA of California. The Congress assembled, The Chair recognizes the gentleman bill is designed to address the phe- SECTION 1. FINDINGS; PURPOSE. from Michigan. nomenon of libel tourism, whereby (a) FINDINGS.—Congress finds the fol- GENERAL LEAVE plaintiffs seek judgments from foreign lowing: Mr. CONYERS. Mr. Speaker, I ask courts from American authors and pub- (1) The first amendment of the Constitu- unanimous consent that all Members lishers for making allegedly defama- tion of the United States prohibits the tory statements. abridgment of freedom of speech. have 5 legislative days to revise and ex- (2) Freedom of speech is fundamental to tend their remarks and include extra- The fact is, these statements in these the values of American democracy. neous material on the bill under con- cases would not be considered defama- (3) In light of the constitutional protection sideration. tory in American courts where the first our Nation affords to freedom of speech, the The SPEAKER pro tempore. Is there amendment gives our authors and peo- Supreme Court has modified the elements of objection to the request of the gen- ple the protection of the first amend- the common law tort of defamation to pro- tleman from Michigan? ment, but in certain jurisdictions, even vide more protection for defendants than There was no objection. countries that have similar legal sys- would be available at common law, including Mr. CONYERS. Mr. Speaker, I yield tems to ours, the first amendment is providing special protections for political speech. myself such time as I may consume. not recognized, and the libel laws are (4) The courts of other countries, including Mr. Speaker, this bill imposes a limited, but much different, and plaintiffs have less those that otherwise share our Nation’s com- important, condition on enforcement of foreign burdens to prove to get judgments mon law and due process traditions, are not defamation judgments in our courts. against defendants.

VerDate Mar 15 2010 10:08 Apr 05, 2011 Jkt 069102 PO 00000 Frm 00129 Fmt 0688 Sfmt 0634 E:\BR08\H27SE8.004 H27SE8 jdjones on DSK8KYBLC1PROD with BOUND RECORD September 27, 2008 CONGRESSIONAL RECORD—HOUSE, Vol. 154, Pt. 16 22811 This threatens to undermine our Na- I would also like to thank the Asso- they started taking all of the books off tion’s core free speech principles, as ciation of American Publishers, par- the shelves, and they started destroy- embodied in the first amendment. U.S. ticularly former Congresswoman Pat ing the books. In fact, they sent word law places this higher burden on defa- Schroeder, the Media Law Resource throughout the world, if you have this mation plaintiffs to safeguard our first Center, and Professor Michael Brode of book, ‘‘Alms For Jihad,’’ destroy the amendment and protect our speech. We Emory University Law School for their book. Kind of like the burning of books have seen problems with this, particu- input on the bill. during World War II under the Nazis. larly in courts of England. The State of I urge the bill’s immediate passage. I So the Cambridge University Press New York has already acted to pass a thank my chairman from the bottom of gave in because the libel laws are dif- bill to protect authors and publishers my heart who I am fortunate to serve ferent than they are in the United in the first amendment, but there was with, and my ranking member who has States. a need to have such on a national basis. been so kind to me during my first It has also occurred here in the Thomas Jefferson is memorialized term. United States with a similar book with the monument here in Wash- Mr. SMITH of Texas. First of all, I called, ‘‘Funding Evil,’’ written by Ra- ington. My friend, Randy Wade, and I support this legislation and I thank the chel Ehrenfeld. What she did was write visited Thomas Jefferson recently. gentleman from Tennessee (Mr. COHEN) a book in the United States, published Around the top of the monument is a for his persistent efforts in promoting in the United States. But some books, statement Thomas Jefferson is known this legislation. 23, worked their way to England. Here for: I yield 3 minutes to my colleague, we go again. This author was sued in ‘‘I have sworn upon the altar of al- the gentleman from Texas (Mr. POE). the courts of England and had the bur- mighty God eternal hostility against Mr. POE. Mr. Speaker, I thank Mr. den of proof to prove that her state- every form of tyranny over the minds CONYERS for pushing this legislation ments were true. Well, she filed suit of men.’’ To infringe on the oppor- and the gentleman from Tennessee (Mr. against the people who sued her, once tunity for people to write books and COHEN) for sponsoring this legislation. again bin Manfouz, and that lawsuit is publish, which is what this does, is tyr- I am proud to be a cosponsor of this now pending in our courts. anny over the minds of men. I believe legislation. The SPEAKER pro tempore. The gen- Jefferson would join with us today in Mr. Speaker, there is a legal pre- tleman’s time has expired. support of this proposal. sumption in most countries, even Third Mr. SMITH of Texas. I yield 1 addi- H.R. 6146 will codify the principle World countries, that if you accuse tional minute. that while U.S. courts will normally somebody of something, you have to Mr. POE. So our courts are hearing enforce judgments of foreign courts, prove it, whether civil or criminal. The this matter and it is all about the free- they should not do so when the foreign burden of proof is on the accuser. But dom of speech and the freedom of press. judgments undermine our Constitu- that is not so in all countries when it That is a human right. That is a uni- tion, particularly our precious first comes to libel and slander. versal right in this world, whether the amendment. Take Great Britain, for example. It courts in Great Britain recognize it or Specifically, our bill prohibits U.S. goes back to when the King ruled the not. And it is important that people be courts from recognizing and enforcing day. If you criticized the King, even if free to write the truth and not suffer foreign defamation judgments that do you were right, off with your head. One the consequences from it and certainly not comport with the first amendment. of the reasons that we formed our own not have to prove what they say is true I believe that passage of this bill will country was the idea of freedom of just because somebody objects. dissuade those who would seek to cir- speech and freedom of press and that is This legislation is good to protect cumvent our first amendment by filing why we put those two fundamental the publishers and writers in the actions in libel-friendly forums that do principles first in our Constitution. I United States that if they are sued in not share our protections and then have a pocket Constitution that most foreign courts, that those judgments threaten our authors with judgments. Members of Congress carry with them, will not be upheld unless that law, that I thank, again, Chairman CONYERS and the first amendment protects the judgment would be upheld in courts in and Ranking Member SMITH for their right of a free press and freedom of assistance in bringing this bill to the the United States. speech. This is important legislation. I would floor on suspension. I also thank Con- What has occurred, though, through- like to put into the RECORD an article gressman ISSA for his help and Con- out the courts in Great Britain in a from the San Francisco Chronicle talk- gressman Peter King. libel case, in other words somebody ing about this entire concept of libel Representative KING had a different bill on the same subject. He has shown writes something about somebody else, tourism. leadership on this issue for his home if the person that is the subject matter [From the San Francisco Chronicle, Aug. 29, State of New York, and he joined with doesn’t like it, they file a lawsuit in 2008] us in this particular bill to try to get it Great Britain, and the burden is on the LIBEL TOURISM: WHERE TERRORISM AND passed here in this Congress. person who wrote the document to CENSORSHIP MEET Adam Cohen, no relation to me in prove it is true. The burden is not on (By Cinnamon Stillwell) any way whatsoever, opined in The the accuser like it would be in the It has become popular for those with com- New York Times that this bill needed United States. That applies not only in peting political agendas to allege threats to to become law immediately. We did go libel cases but slander cases. And it has free speech, whether real or imagined. Yet, there is a very real threat to free speech that into warp speed to get this to the floor. taken place especially in books about Islamic terrorism throughout the has received little attention in the public b 1830 world. sphere. It’s called libel tourism and it has be- come a major component in the ideological I am committed to working with Mr. Writers critical of Islamic terrorists arm of the war on terrorism. KING next year. I have talked to Chair- are being sued by wealthy sheiks and At question is the publication of books and man CONYERS, and he is in agreement Saudi billionaires, specifically Khalid other writings that seek to shed light on the that we should have a public hearing bin Manfouz, who was accused in financing of Islamic terrorism. Increasingly, next year on this legislation with Mr. ‘‘Alms for Jihad’’ of financing Islamic American authors who dare enter this terri- KING’s ideas that go further than this terrorists through Muslim charities. tory are finding themselves at risk of being bill to discuss how far libel tourism What he did, he got mad about the sued for libel in the much more plaintiff- should go. And that hearing I think Cambridge University Press, and he friendly British court system in what amounts to an attempt to censor their work would satisfy Senator SPECTER’s office threatened to sue Cambridge Univer- on an international level. and others on the Senate side, to go sity Press. What happened in England, The latest case of libel tourism to rear its deeper to protect our authors and the which I hope never happens with our ugly head involves the book ‘‘Alms for freedom of speech. press, they got so nervous about it that Jihad,’’, which was published by Cambridge

VerDate Mar 15 2010 10:08 Apr 05, 2011 Jkt 069102 PO 00000 Frm 00130 Fmt 0688 Sfmt 0634 E:\BR08\H27SE8.004 H27SE8 jdjones on DSK8KYBLC1PROD with BOUND RECORD 22812 CONGRESSIONAL RECORD—HOUSE, Vol. 154, Pt. 16 September 27, 2008 University Press in 2006. Co-written by Ehrenfeld would not, as she put it in the to the individual copy or copies, and it is the former State Department analyst and New York Post, ‘‘acknowledge a British library’s property to do with as it pleases. USAID relief coordinator for Sudan J. Mil- court’s jurisdiction over a book published Given the intense interest in the book, and lard Burr and UC Santa Barbara professor here’’ and a trial was never held, but the the desire of readers to learn about the con- emeritus of history Robert O. Collins, ‘‘Alms court ruled in favor of bin Mahfouz by de- troversy first hand, we recommend that U.S. for Jihad’’ delves into the tangled web of fault. It also awarded bin Mahfouz $225,913 in libraries keep the book available for their international terrorist financing and, chief- damages and ordered Ehrenfeld to apologize users.’’ ly, the misuse of Muslim charities for such publicly and to destroy all unsold copies of Reportedly, Collins and Burr got the pub- purposes. the book. lishing rights to the book back from Cam- Among those the book fingers for involve- Instead, Ehrenfeld chose to fight back. No bridge University Press and, according to the ment is Saudi billionaire Khalid bin doubt aware of the larger implications at Library Journal, have had ‘‘several offers Mahfouz, the former chairman of Saudi Ara- work, she took her case to the United States from U.S. publishers.’’ It appears the ‘‘Alms bia’s largest bank, National Commercial and, giving bin Mahfouz a taste of his own for Jihad’’ saga is far from over and free Bank. Bin Mahfouz has come under similar medicine, sued him in a New York federal speech may yet win the day. scrutiny on previous occasions, including court on the basis that ‘‘his English default In another victory for free speech, as well being named a defendant in a lawsuit filed by judgment is unenforceable in the United as an instructive example of what such libel family members of victims of the Sept. 11 States and repugnant to the First Amend- suits look like when attempted in the United terrorist attacks. He even has a section of ment.’’ States, a recent case involving Yale Univer- his Web site devoted to trying to refute such Civil-liberties lawyer Harvey Silverglate sity Press proves useful. It involved a book charges. has described her case as ‘‘one of the most written by Matthew Levitt, the director of With this in mind, Cambridge University important First Amendment cases in the the Stein Program on Terrorism, Intel- Press lawyers looked over the manuscript for past 25 years’’ and sure enough, in June of ligence and Policy at the Washington Insti- tute for Near East Policy, titled ‘‘Hamas: ‘‘Alms for Jihad’’ carefully before giving it this year, the Second Circuit Court of Ap- Politics, Charity, and Terrorism in the Serv- the go-ahead. According to Collins, the pas- peals agreed that it deserved a hearing. The ice of Jihad.’’ sages involving bin Mahfouz are, in fact, court will begin hearing arguments this fall In his book, Levitt disputes the notion, quite ‘‘trivial’’ compared to the wealth of in- in what could turn out to be a pivotal case popular among Hamas apologists, that the formation contained in the book on how such involving the clash between First Amend- group’s terrorist and social service pursuits funds are used to finance conflicts around ment rights and foreign libel rulings. can be seen as separate. In the process, he the globe. Ehrenfeld may indeed have a strong case. implicates the Dallas charity KinderUSA, Yet, it is bin Mahfouz’s inclusion in ‘‘Alms She maintains that bin Mahfouz has a long which allegedly raises funds for Palestinian for Jihad’’ that has proven to be the most history of involvement in terrorist financ- children, in terrorist financing. The group problematic, for he soon threatened Cam- ing. The bulk of it, she wrote in 2005, re- has personnel connections to the now-closed bridge University Press with a libel lawsuit. volves around the now-defunct Muwafaq Holy Land Foundation for Relief and Devel- Before the suit could commence, Cambridge (Blessed Relief) Foundation, which was opment, which has been under investigation University Press capitulated and announced founded by bin Mahfouz and ‘‘identified by by federal authorities for funding Hamas. in July that not only was it taking the un- the U.S. Treasury Department as providing KinderUSA has also come under investiga- precedented step of pulping all unsold copies logistical and financial support to al Qaeda, tion and as a result, in 2005 suspended oper- of ‘‘Alms for Jihad,’’ but it was asking li- HAMAS, and the Abu Sayyaf organizations.’’ ations temporarily. braries all over the world to remove the book Ehrenfeld recapped her concerns more re- All of this information is available to the from their shelves. Cambridge University cently: ‘‘The data in both Alms for Jihad and public and the book was thoroughly fact- Press issued a formal apology to bin Mahfouz Funding Evil is all well-documented by the checked prior to publication. Levitt, who is and posted a public apology at its Web site. media and the U.S. Congress, courts, Treas- a witness in the ongoing trial of the Holy It also agreed to pay his legal costs and un- ury Department and other official state- Land Foundation, explained further that he specified damages, which, according to bin ments. Further corroboration comes from ‘‘conducted three years of careful research Mahfouz, are to be donated to UNICEF. French intelligence officials at the General for Hamas, and the book was the subject of Authors Burr and Collins, however, did not Directorate of External Security (DGSE), as academic peer review.’’ take part in the apology, nor were they a reported in the French daily, Le Monde. For But this didn’t stop KinderUSA and the party to the settlement, and they continue example, the DGSE reported that, in 1998, it chair of its board, Dr. Laila AI-Marayati, to stand by their scholarship. As Collins put knew bin Mahfouz to be an architect of the from filing a libel suit in California in April it, ‘‘I’m not going to recant on something banking scheme built to benefit Osama bin against Levitt, Yale University Press, and just from the threat of a billionaire Saudi Laden, and that both U.S. and British intel- the Washington Institute for Near East Pol- sheik . . . I think I’m a damn good histo- ligence services knew it, too.’’ icy. They disputed a particular passage from rian.’’ The authors were aware that Cam- For this reason, and also to create a prece- the book, as well as alleging that Yale Uni- bridge University Press’s decision was based dent, Ehrenfeld has been the only defendant versity Press did not subject it to fact- not so much on a lack of confidence in the so far not to settle with bin Mahfouz. And checking. But, in filing the suit in Cali- book as on a fear of incurring costly legal ex- she refuses to ‘‘acknowledge the British fornia, they were faced with a formidable penses and getting involved in a lengthy Court and its ruling’’ to this day. challenge: the state’s anti-SLAPP statute. trial. The British court system is known as Ehrenfeld’s success thus far countering bin According to Inside Higher Education: a welcoming environment for ‘‘libel tour- Mahfouz mirrors other indications that libel ‘‘KinderUSA asked the court for an injunc- ists’’ such as bin Mahfouz. The Weekly tourism may be backfiring. The largely tion on its request that distribution of the Standard elaborates: ‘‘Bin Mahfouz has a Internet-based furor over the attempt to book be halted, and also sought $500,000 in habit of using the English tort regime to squelch ‘‘Alms for Jihad’’ and what is widely damages. But in July, Yale raised the stakes squelch any unwanted discussion of his seen as Cambridge University Press’ cave-in by filing what is known as an ‘‘anti-SLAPP record. In America, the burden of proof in a has caused the book’s price to skyrocket. A suit’’ motion, seeking to quash the libel suit libel suit lies with the plaintiff. In Britain, it copy of the book sold on eBay this month for and to receive legal fees. SLAPP is an acro- lies with the defendant, which can make it $538. As noted at the blog Hot Air, ‘‘By suing nym for ‘‘strategic lawsuit against public terribly difficult and expensive to ward off a publisher Cambridge University Press into participation,’’ a category of lawsuit viewed defamation charge, even if the balance of submission, Khalid bin Mahfouz has turned as an attempt not to win in court, but to evidence supports the defendant.’’ an obscure scholarly book on the financial harass a nonprofit group or publication that Bin Mahfouz has indeed availed himself of workings of terrorism into a prized, rare is raising issues of public concern. The fear the British court system on many occasions, book.’’ of those sued is that groups with more having either sued or threatened suit against In addition, the American Library Associa- money can tie them up in court in ways that Americans and others at least 36 times since tion is rising to the occasion. Rather than would discourage them from exercising their 2002, according to Rachel Ehrenfeld, author going along with the Cambridge University rights to free speech. Anti-SLAPP statutes, and director of the American Center for De- Press settlement stipulation that American such as the one in California with which mocracy. libraries remove ‘‘Alms for Jihad’’ from their Yale responded, are tools created in some Ehrenfeld should know, as her own book, shelves, the American Library Association’s states to counter such suits.’’ ‘‘Funding Evil: How Terrorism is Financed— Office for Intellectual Freedom issued the Not only did Yale University Press stand And How to Stop It,’’ was also targeted by following statement earlier this month: ‘‘Un- by its author, but, in the end, its aggressive bin Mahfouz through the British court sys- less there is an order from a U.S. court, the response to KinderUSA paid off. It was an- tem. Bin Mahfouz sued Ehrenfeld for libel in British settlement is unenforceable in the nounced this month that the libel suit has 2004, soon after her book’s publication in the United States, and libraries are under no been dropped and no changes to the book or United States, even though only 23 copies legal obligation to return or destroy the payments to the plaintiffs will be forth- ever made it to the United Kingdom. book. Libraries are considered to hold title coming. KinderUSA claims that it dropped

VerDate Mar 15 2010 10:08 Apr 05, 2011 Jkt 069102 PO 00000 Frm 00131 Fmt 0688 Sfmt 0634 E:\BR08\H27SE8.004 H27SE8 jdjones on DSK8KYBLC1PROD with BOUND RECORD September 27, 2008 CONGRESSIONAL RECORD—HOUSE, Vol. 154, Pt. 16 22813 the suit because of the costs involved, but ism by codifying a principle already reflected under U.S. standards before it could be en- it’s more likely it felt that it could not win. in U.S. law. forced here. This will provide important protec- If the case had been brought in the United Mr. Speaker, I commend the primary au- tion for Americans and others who exercise Kingdom, the outcome could have been far thors of the bill, my colleagues on the Judici- the First Amendment right of free speech in different. This is why Americans must be vigilant ary Committee, Representatives STEVE COHEN our country. about protecting their free speech rights, and DARRELL ISSA, for their hard work and per- I urge approval of the bill. even when the threats at hand do not fit into sistence in addressing this important subject. Mr. KING of New York. Mr. Speaker, today the politically correct playbook. Certainly I also want to acknowledge our colleague, I rise in support of H.R. 6146, legislation that not all Muslim charities and Saudi business- Representative PETER KING, the Ranking will prohibit the recognition and enforcement of men are involved in financing terrorism, but Member of the Homeland Security Committee, foreign defamation judgments based upon a the overwhelming amount of evidence point- for his work on the issue. publication that concerns a public figure or a ing to existing links deserves attention, as I urge my colleagues to support H.R. 6146. matter of public concern. This bill, like legisla- do the fervent attempts by interested parties Mr. UDALL of Colorado. Mr. Speaker, as a tion (Free Speech Protection Act) that I intro- to silence those trying to bring the truth to duced earlier this year attempts to deal with light. It is crucial that they not succeed. cosponsor of this bill, I rise to urge its ap- proval by the House. the issue of ‘‘libel tourism’’ that threatens not Mr. CONYERS. Mr. Speaker, I yield The bill responds to as increasingly serious only Americans’ First Amendment freedom of back the balance of my time. threat to freedom of speech—the phenomenon speech but also their ability to inform the gen- Mr. SMITH of Texas. Mr. Speaker, eral public about existential threats; namely, my Texas colleague described the mer- often called ‘‘libel tourism.’’ That term is used to describe lawsuits who are the terrorists and who are their sup- its of this legislation so well, I will brought in other countries—especially the porters. As the Ranking Member on the House simply make my prepared statement a United Kingdom—by people claiming to have Committee on Homeland Security I am regu- part of the RECORD. been defamed by publications that would not larly briefed on dangers to the homeland and Mr. Speaker, in the wake of 9–11, the be considered defamatory in the United know how grave these threats are. We cannot American media has become increasingly States. allow foreigners the opportunity to muzzle alarmed over a phenomenon called ‘‘libel tour- As explained in a recent news article about Americans for speaking the truth about these ism.’’ The term refers to the subject of a crit- the practice— dangers! ical news story suing the American author or Britain is a legal refuge because of defama- Libel tourism is a recent phenomenon in reporter of the story in a plaintiff-friendly over- tion standards rooted in common law. They which certain individuals are obstructing the seas forum. essentially assume that any offending speech free expression rights of Americans (and the This mostly occurs in the United Kingdom, is false and the writer or author must prove vital interest of the American people) by seek- since English libel and slander laws offer less that it is in fact true to prevail against the ing out foreign jurisdictions (‘‘libel shopping’’) protection to journalists compared to the U.S. charge. In the United States, with its First that do not provide the full extent of free- system that features the protection offered by Amendment protection for free speech, the speech protection that is enshrined in our First the First Amendment. situation tilts in the opposite direction: To Amendment. Some of these actions are in- succeed, libel plaintiffs must prove that the Persons identified in news stories as terror- tended not only to suppress the free speech ists or terrorist sympathizers have brought speech is false and published with a reckless disregard for the truth. rights of journalists and others but also to in- some of the higher-profile suits. In fact, H.R. timidate publishers and other organizations A notable example involves the case of Ra- 6146 is a legislative response to a New York from disseminating or supporting their work. case in which a Saudi billionaire sued an chel Ehrenfeld, an Israeli-born writer living in Unlike in the United States where the bur- American author in the UK for defamation, the United States and her legal battle with a den of proof is on the plaintiff to show that the based on the author’s allegations that he had billionaire Saudi entrepreneur, Khalid Salim publication was not only false but also mali- subsidized terrorist activities. bin Mahfouz over her 2003 book on terrorist fi- cious, in countries such as the United King- What is the legal hook that allowed a British nancing, ‘‘Funding Evil,’’ which asserted that dom it is the reverse: The defendant is re- court to claim jurisdiction over the case? Bin Mahfouz and his family provided financial quired to appear in court and prove what he Twenty-three copies of the author’s book de- support to Islamic terrorist groups. The book has written was 100 percent factual. And tailing the billionaire’s activities were pur- was not sold in the United Kingdom, but Mr. some of the ‘‘tourists’’ claims of jurisdiction are chased online in Great Britain. Bin Mahfouz’s lawyers argued that more than tenuous at best. In many cases, not only are The reporter chose not to appear before the 20 copies of her book had been purchased none of the individuals (author, litigant, or pub- court, which subsequently found her liable and there online and that therefore the British lisher) associated with the case living in the ordered her to pay $225,000 in damages, courts had authority to hear his defamation venue of jurisdiction, but neither are the books apologize to the plaintiff, and destroy any re- complaint. published there. These ‘‘tourists’’ stretch the maining copies of the offending book. Ms. Ehrenfeld did not respond and because law by claiming a handful of copies of the Such a result is doubly troublesome. First, she offered no defense, the judge ruled that book were purchased over the internet in that an author must worry about satisfying a judg- she had to pay a judgment of $225,000, country. The author must then hire an attor- ment that would bankrupt most Americans. apologize for false allegations, and destroy ex- ney, travel to the foreign country, and defend And second, an author must contend with the isting copies of the book. Mr. Bin Mahfouz has himself or likely face a default judgment fall-out of being shunned by the publishing not sought to collect on the judgment, but Ms. against him. Consequences include (but are community. Ehrenfeld says it has affected her ability to not limited to) fines, public apologies, pulping This is not an imagined result. It is a real publish further books. And last year Cam- of books, and the removal of them from book- threat to anyone wishing to earn a living by re- bridge University Press agreed to destroy all stores and libraries. porting and commenting on controversial sub- copies of ‘‘Arms for Jihad’’ and to write to 100 We cannot change nor would we want to jects. And it’s an outcome incompatible with libraries around the world seeking to add an change other countries’ (libel) laws. We must our constitutional history and its commitment explanatory sheet to archived books. respect their rule of law as they ought to re- to the free-flow of ideas and to the robust de- Evidently Mr. Bin Mahfouz has filed more spect ours. However, we cannot allow foreign bate contemplated by the First Amendment. than 24 lawsuits against writers and authors, citizens to exploit these courts to shield per- H.R. 6146 combats libel tourism by pro- and his advisers have created a special Web sonal reputations when it directly contradicts scribing enforcement of any foreign defama- site tracking the legal suits and apologies Americans’ First Amendment protected tion case if it is not ‘‘consistent with the First issued by writers and publishers. speech, especially when the subject matter is Amendment . . . .’’ This proposal tracks U.S. The bill now before the House responds to of such grave importance as terrorism and case law, which holds that a foreign judgment this threat to free speech. It would bar any those who finance it. We rely on a variety of will not be enforced in an American court if the U.S. court (State or Federal) from recognizing sources for intelligence and we cannot allow foreign judgment is offensive to State or Fed- or enforcing a foreign defamation judgment foreign litigants and foreign courts to tell us eral law. unless it determined that the judgment ‘‘is con- who can write and who can publish what. That H.R. 6146 does not overreach. It constitutes sistent with the First Amendment.’’ Thus, is a dangerous path we do not want to follow. a straightforward and sensible response to the someone who had won a defamation judg- Furthermore, the governments and courts of practical legal problems caused by libel tour- ment abroad would have to prove the case some foreign countries have failed to curtail

VerDate Mar 15 2010 10:08 Apr 05, 2011 Jkt 069102 PO 00000 Frm 00132 Fmt 0688 Sfmt 9920 E:\BR08\H27SE8.004 H27SE8 jdjones on DSK8KYBLC1PROD with BOUND RECORD 22814 CONGRESSIONAL RECORD—HOUSE, Vol. 154, Pt. 16 September 27, 2008 this practice, permitting lawsuits filed by per- person bringing the foreign lawsuit inten- working. Journalists are even afraid of writing sons who are often not citizens of those coun- tionally engaged in a scheme to suppress First about this legislation! That’s their goal here. tries, under circumstances where there is Amendment rights. It allows for the expedited Not to collect the money. Many of them are al- often little or no basis for jurisdiction over the discovery if the court determines that the ready wealthy, and if they really cared about Americans against whom such suits are speech at issue in the foreign defamation ac- collecting a monetary judgment they would file brought. tion is protected by the First Amendment. Fi- these suits in the U.S. in the first place. They Some of the plaintiffs bringing such suits are nally, nothing in this legislation would limit the choose not to, however, because they know intentionally and strategically refraining from rights of foreign litigants who bring good faith they would never win in a U.S. court. filing their suits in the United States, even defamation actions to prevail against journal- Finally, I support H.R. 6146 because it is a though the speech at issue was published in ists and others who have failed to adhere to first step in the right direction. I am a cospon- the United States, to avoid the Supreme standards of professionalism by publishing sor of this bill and thank Representatives Court’s First Amendment jurisprudence and false information maliciously or recklessly. The STEVE COHEN and DARRELL ISSA for intro- frustrate the protections it affords Americans. Free Speech Protection Act does, however, ducing it. H.R. 6146 is an important and nec- But this issue is also very troubling for the attempt to discourage those foreign libel suits essary part of any ‘‘libel tourism’’ bill. Unfortu- authors, journalists, and even publishers who that aim to intimidate, threaten, and restrict the nately, it doesn’t put an end to the problem attempt to write on these subjects. Already we freedom of speech of Americans. I am proud and doesn’t provide any deterrence from these have seen examples of authors having dif- to have worked closely with Senators. ARLEN suits being filed in the first place. But it is my ficulty getting their articles or books published SPECTER and JOE LIEBERMAN who have intro- hope that during the 111th Congress we can because of publishing houses’ fear of being duced companion legislation in the Senate. have hearings on this important issue and that sued overseas. Some companies have even I support the passage of H.R. 6146, a Fed- Representatives COHEN and ISSA, along with gone as far as to pay large settlements to eral version of New York State’s ‘‘Rachel’s Senators SPECTER and LIEBERMAN and I, can avoid having to go to court. So not only are Law,’’ which will provide protection to U.S. au- sit down together and craft a bill that we can authors being injured for the works they have thors, journalists, and publishers against the all agree on and that will solve this problem previously written but they and their publishers domestic enforcement of defamation judg- once and for all. are being intimidated from writing future works ments from foreign countries with less free Mr. ISSA. Mr. Speaker, I rise today in sup- on these important topics. The free expression speech protections than the U.S. The protec- port of H.R. 6146, a bill to stifle the practice and publication by journalists, academics, tion of free speech enshrined in the First of libel tourism. commentators, experts, and others of the in- Amendment is one of America’s most cher- The right to free speech in the United States formation they uncover and develop through ished rights, and it is unacceptable that First is of fundamental importance. It is arguably the cornerstone of our democracy and the research and study is essential to the forma- Amendment rights of Americans can be poten- hammer that keeps our government and its of- tion of sound public policy and thus to the se- tially undermined or restricted by foreign court judgments based on lower free speech stand- ficials in check. curity of Americans. We must not take our right to free speech The Americans against whom such suits are ards. for granted, for our level of freedom is not brought must consequently endure the prohibi- The impetus for a Federal ‘‘Rachel’s Law’’ is honored in many countries around the world. tive expense, inconvenience, and anxiety at- the case of Dr. Rachel Ehrenfeld, a U.S. cit- China is an easy example of government-con- tendant to being sued in foreign courts for izen and Director of the American Center for trolled speech, as demonstrated recently by Democracy. Dr. Ehrenfeld’s 2003 book, conduct that is protected by the First Amend- the restrictions placed on the international ‘‘Funding Evil: How Terrorism is Financed and ment, or decline to answer such suits and risk press during the Olympic Games. But other How to Stop It,’’ which was published solely in the entry of costly default judgments that may countries are more of a surprise. be executed in countries other than the United the United States by a U.S. publisher, alleged Our friend and ally, Great Britain, takes a States where those individuals travel or own that a Saudi Arabian subject and his family fi- much more liberal position on libel laws than property. nancially supported al Qaeda in the years pre- the United States. They allow judgments In turn, the American people are suffering ceding the attacks of September 11. He sued against defendants that would not pass muster concrete and profound harm because they, Dr. Ehrenfeld for libel in England though be- in our domestic courts, and for this reason their representatives, and other government cause under English law, it is not necessary many plaintiffs in libel suits involving American policy-makers rely on the free expression of for a libel plaintiff to prove falsity or actual defendants seek redress in British courts. information, ideas and opinions developed by malice as is required in the U.S. After the For example, the book, ‘‘Alms for Jihad’’, responsible journalists, academics, commenta- English court entered a judgment against Dr. written by a former State Department analyst tors, experts, and others for the formulation of Ehrenfeld, she sought to shield herself with a and a University of California Santa Barbara sound public policy, including national security declaration from both Federal and State courts professor, looked into the network of global fi- policy. that her book did not create liability under nances aiding international terrorism. The Having said that, the United States respects American law, but jurisdictional barriers pre- book mentioned a Saudi billionaire as being the sovereign right of other countries to enact vented both the Federal and New York State involved at some level, a claim not without their own laws regarding speech, and seeks courts from acting. Reacting to this problem, controversy, but also not without legitimate re- only to protect the First Amendment rights of the Governor of New York, on May 1, 2008, search by the authors. Americans in connection with speech that oc- signed into law the ‘‘Libel Terrorism Protection The threat of lawsuit by the billionaire in the curs, in whole or part, in the United States. Act’’, commonly known as ‘‘Rachel’s Law.’’ British courts alone caused Cambridge Univer- That is why earlier this year I introduced the I support H.R. 6146 because it prohibits sity Press to shred all unsold copies of ‘‘Alms Free Speech Protection Act, H.R. 5814, to de- U.S. (domestic) courts from enforcing these for Jihad’’ in addition to asking libraries the fend U.S. persons who are sued for defama- outrageous defamation suits. We must stand world over to pull the book. tion in foreign courts. This legislation allows up to the terrorists and their financers, sup- We cannot allow libel laws in other countries U.S. persons to bring a Federal cause of ac- porters, and sympathizers. However, this bill to censor the writings of American authors tion against any person bringing a foreign libel does not go far enough nor does it resolve the when laws within the United States find the suit if the writing does not constitute defama- problem of ‘‘libel tourism.’’ Foreign litigants will writings legitimate. Doing so will erode our tion under U.S. law. It would also bar enforce- still be allowed to file these libel suits over- right to free speech in the United States, an ment of foreign libel judgments and provide seas without the worry of being countersued outcome I believe we all find abhorrent. other appropriate injunctive relief by U.S. here in the U.S. If this bill passes, they will I cosponsored H.R. 6146 with Congressman courts if a cause of action is established. H.R. never see a dime of those hefty judgments STEVE COHEN to help eliminate this threat. The 5814 would award damages to the U.S. per- they were awarded, but that’s not what they bill instructs courts within the United States son who brought the action in the amount of are after in the first place. They want the de- not to enforce libel judgments of foreign courts the foreign judgment, the costs related to the fault judgment. They want the publicity. They unless the domestic court finds the judgment foreign lawsuit, and the harm caused due to want the apology. And they want these books is consistent with the First Amendment. This is the decreased opportunities to publish, con- to disappear. But most of all they want to in- a fairly simple mechanism, but one that we ex- duct research, or generate funding. Further- timidate. They want to make sure people are pect to help control the threat of censorship more, it would award treble damages if the afraid of writing anything about them. And it’s arising from libel tourism.

VerDate Mar 15 2010 10:08 Apr 05, 2011 Jkt 069102 PO 00000 Frm 00133 Fmt 0688 Sfmt 9920 E:\BR08\H27SE8.005 H27SE8 jdjones on DSK8KYBLC1PROD with BOUND RECORD September 27, 2008 CONGRESSIONAL RECORD—HOUSE, Vol. 154, Pt. 16 22815 Without the fear of foreign judgments The Chair recognizes the gentleman Equal Justice For Our Military Act, a against legitimate writings, American authors from Michigan. bill giving our servicemembers equal should feel safe continue to promote national GENERAL LEAVE access to the United States Supreme and international discourse and debate. Mr. CONYERS. Mr. Speaker, I ask Court. Mr. SMITH of Texas. Mr. Speaker, I unanimous consent that all Members We all know when American men and yield back the balance of my time. may have 5 legislative days in which to women decide to serve their Nation in The SPEAKER pro tempore (Mr. revise and extend their remarks and in- the Armed Forces, they make many ALTMIRE). The question is on the mo- clude extraneous material on the bill sacrifices, from lost time with their tion offered by the gentleman from under consideration. families to irreplaceable loss of lives. Michigan (Mr. CONYERS) that the House The SPEAKER pro tempore. Is there Servicemembers also sacrifice one of suspend the rules and pass the bill, objection to the request of the gen- the fundamental legal rights that all H.R. 6146, as amended. tleman from Michigan? civilian members enjoy. The question was taken; and (two- There was no objection. Members of the military convicted of thirds being in the affirmative) the Mr. CONYERS. I yield myself such offenses under the military justice sys- rules were suspended and the bill, as time as I may consume. tem do not have the legal right to ap- amended, was passed. Mr. Speaker, the Equal Justice for Our Mili- peal their cases to the U.S. Supreme A motion to reconsider was laid on tary Act amends the Federal judicial code to Court. After exhausting their appeals the table. allow members of the United States Armed through the United States Court of Ap- peals for the Armed Forces, they have f Services to petition for review by the United States Supreme Court in certain cases when no recourse. In fact, the playing field is REPORT ON RESOLUTION WAIVING they have been denied relief by the Court of weighted in favor of the military, REQUIREMENT OF CLAUSE 6(a) Appeals for the Armed Forces. granting the automatic right of Su- OF RULE XIII WITH RESPECT TO Many Americans would be shocked to learn preme Court review to the Department CONSIDERATION OF CERTAIN that soldiers serving their country in uniform of Defense when a servicemember wins RESOLUTIONS are blocked from equal access to the Su- a case. But servicemembers are denied Mr. HASTINGS of Florida (during de- preme Court. the same right in nearly every case the bate on H.R. 6146), from the Committee But the truth is that current law provides vir- government wins against them. on Rules, submitted a privileged report tually no avenue through which active service It is unjust to deny the members of (Rept. No. 110–897) on the resolution (H. members who have been convicted by court- our Armed Forces access to our system Res. 1514) waiving a requirement of martial of certain serious offenses, or who of justice as they fight for our freedom clause 6(a) of rule XIII with respect to face discharge or dismissal, to ask our Na- around the world. They deserve better. consideration of certain resolutions re- tion’s highest court to review their case. As the chairwoman of the Sub- ported from the Committee on Rules, Currently, the Supreme Court can only hear committee on Military Personnel, a which was referred to the House Cal- cases where the U.S. Court of Appeals for the long time advocate for servicemembers endar and ordered to be printed. Armed Forces, the highest court of the military and a Representative from San Diego, justice system, has either conducted a review one of the largest military commu- f of a court-martial, or has granted a service- nities in the Nation, I feel an obliga- EQUAL JUSTICE FOR OUR member’s petition for extraordinary relief. tion to fight to ensure that the mem- MILITARY ACT OF 2007 What this means is that when the court of bers of our military are treated fairly. I introduced, along with Armed Serv- Mr. CONYERS. Mr. Speaker, I move appeals denies review, which it does nearly 90 ices Chairman Ike Skelton, H.R. 3174 to to suspend the rules and pass the bill percent of the time, the Supreme Court is correct this inequity. This bill has been (H.R. 3174) to amend titles 28 and 10, barred from reconsidering the case at the re- endorsed by the American Bar Associa- United States Code, to allow for certio- quest of the servicemember. tion, the Military Officers Association rari review of certain cases denied re- Adding insult to injury, while a servicemem- of America, and many other legal and lief or review by the United States ber is not able to obtain Supreme Court re- military advocates. In addition, the Court of Appeals for the Armed Forces. view if he or she loses at the court of appeals, Congressional Budget Office has stated The Clerk read the title of the bill. if the court of appeals rules against the gov- that this bill does not affect direct The text of the bill is as follows: ernment, the Government can seek review in the Supreme Court. spending. H.R. 3174 And a former servicemember who is tried It is fundamentally unjust, Mr. Be it enacted by the Senate and House of Rep- under the Military Extraterritorial Jurisdiction Speaker, to deny those who serve on resentatives of the United States of America in Act in civilian court for crimes committed while behalf of our country one of the basic Congress assembled, on active duty also has full right to petition for rights afforded to all other Americans. SECTION 1. SHORT TITLE. Supreme Court review. I hope that all of my colleagues will This Act may be cited as the ‘‘Equal Jus- stand with me in strong support of this tice for Our Military Act of 2007’’. The Equal Justice for Our Military Act cor- rects this unfair one-sidedness by allowing an legislation to attain equal treatment SEC. 2. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE active servicemember to file a writ of certiorari for those who fight for us. ARMED FORCES. to the Supreme Court in any case where the Mr. SMITH of Texas. Mr. Speaker, I (a) IN GENERAL.—Section 1259 of title 28, Court of Appeals for the Armed Forces has yield myself such time as I may con- United States Code, is amended— denied review of a court-marital conviction or sume. (1) in paragraph (3), by inserting ‘‘or de- has denied a petition for extraordinary relief. Mr. Speaker, the vast majority of nied’’ after ‘‘granted’’; and I would like to commend the author of this servicemembers serve with distinction (2) in paragraph (4), by inserting ‘‘or de- bill, our colleague SUSAN DAVIS of California, and honor, and are never subjected to nied’’ after ‘‘granted’’. disciplinary action under the Uniform (b) TECHNICAL AND CONFORMING AMEND- for her leadership in working to correct this on- MENT.—Section 867a(a) of title 10, United going injustice, so that our active Code of Military Justice. But when dis- States Code, is amended by striking ‘‘The servicemembers have the same fundamental ciplinary action is necessary, the Supreme Court may not review by a writ of protection that Americans take for granted. UCMJ and the military justice system certiorari under this section any action of I urge my colleagues to support this legisla- provide a high degree of protection for the Court of Appeals for the Armed Forces in tion. the accused. In many cases, these pro- refusing to grant a petition for review.’’. Mr. Speaker, I yield such time as she tections extend well beyond those pro- The SPEAKER pro tempore. Pursu- may consume to the gentlewoman from vided by the civil justice system. ant to the rule, the gentleman from California (Mrs. DAVIS). But from time to time, policymakers Michigan (Mr. CONYERS) and the gen- Mrs. DAVIS of California. Mr. Speak- ought to review and contemplate pro- tleman from Texas (Mr. SMITH) each er, I rise today on behalf of our troops posals for change. I am told the par- will control 20 minutes. by urging passage of H.R. 3174, the ticular section of the code this bill

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