In Soviet Russia, Law Chooses You! Or, Forum Shopping Away the First Amendment

Every now and again, we law-talking guys get our moment in the sun, when one of the vague and bizarre doctrines probed only by academics is exposed to the unexpected, searching sun of publicity. AH! It burns, it burns! This month, it’s comity and private international law, collectively known as the conflict of laws.

Executive summary: fur’ners want to sue the first amendment away from us, courts are letting them, and that’s bad. Or, in more depth, some plaintiffs with ties to terrorism and militant Islam are using the comparatively weaker free speech protections of European nations to win libel suits that they couldn’t win in America, American courts are for some reason enforcing the judgments, and Joe Lieberman (I-Conn.) is right to be worried. He wants to pass a law requiring American courts to ignore foreign libel judgments if they wouldn’t fly under our first amendment, and I think he’s right on target. Our first amendment is not up for debate. As usual, skip to the rant if you want.

The Law

If a European manages to make their law of libel apply to an American defendant, they do it through a two step process, first by winning the case in Europe, and second, by asking an American court to give them money based on the judgment.

After all, winning a case isn’t everything. When you “win,” you don’t get money; you get a judgment, and you have to ask the court to help you collect on that judgment. Those steps blur when an American sues an American: they’re both in front of the court, and if the losing party runs, American police are right behind them. But when a foreigner sues an American, things get dicey, and cracks start to show in the two step process. Let’s go through them both.

First things amendment first. It’s very hard to win a libel case. The United States grants vast leeway to speakers when making impolite, impolitic, or even borderline libelous statements. If you want to sue someone for slandering you, the burden is on you to prove the offense: you have to prove that the allegation made against you was (1) not true, and (2) made with reckless disregard for the truth. N.Y. Times Co. v. Sullivan, 376 U.S. 254. If you’re a public figure, forget about it – you have to prove “actual malice” in addition to those. Hustler Magazine v. Falwell, 485 U.S. 46 (yes, that Falwell). Long story short, the United States prefers to let people say what they want to when they want to, and if they’re wrong, the truth will out. That’s why the marketplace of ideas is so vitally important – because it’s the only remedy afforded to a slandered individual in cases where “reckless disregard” or “actual malice” can’t be proven. Because of the value we place in the marketplace of ideas, some slander cases just won’t be won.

Comparably, it’s much, much easier to sue for slander, libel or other defamation torts in other nations. In the U.K. and most of Europe, the burden is instead on the speaker to prove accuracy. An American citizen living in Europe, then, might get sued for something they could’ve freely said in America, and that’s just tough. The more complicated case arises where an American citizen, sitting in America, makes a false statement that injures (perhaps through the internets) someone halfway around the globe. An aggrieved plaintiff sitting in, say, Australia can win a judgment (“you were slandered”), but they can’t enforce the bloody thing. After all, who’s going to enforce it? The Australian court and legal system only have jurisdiction over people in Australia, and the defendant’s not in Australia . The court system is powerless, and the plaintiff’s stuck with a meaningless piece of paper.

Unless they can ask American courts to enforce the judgment. And that’s a matter of comity. Comity is how a foreign plaintiff gets a domestic court to turn their judgment into the money they feel they’re owed. But foreign courts – in our Australian example, American courts – don’t have to enforce the judgment. Both the common law of comity and modern statutes permit our courts to ignore a foreign judgment if it was unfairly obtained, if it contravenes a fundamental public policy, or if it’s repugnant to the nation’s values. This is why America doesn’t have to enforce Sharia law verdicts, for example.

Similarly, faced with foreign libel judgments, courts routinely decline to enforce a judgment as requested, since to do so would supplant American first amendment jurisprudence, and its respect for free speech, with a foreign standard that may be surprising or cruel to the American defendant. Given these cases, courts have been known to ask the parties to settle, try to broker a compromise, or flat out say “no.” And that’s the way it should be. Our first amendment is our first amendment. An American citizen has every right to expect to be covered by the first amendment when speaking within their own country. While America ought to respect the world’s values, when it comes to our citizens, our Constitution comes first.

The Rant

Free speech is one of our most vitally important values. When other nations ask us to compromise that value with regards to an act done by an American on American soil, and only affecting a foreigner in the abstract, the answer should be a categorical no, especially because established principles of comity allow us to do so easily without running afoul of treaty obligations or the reasonable expectations of foreigners doing business with Americans. American law for American citizens. Not too complicated.

Further, free speech is one of our greatest contributions to the idea of democracy. While other nations have opted to trade free speech for safety and comfort – Germany, for example, will jail you for speaking favorably of Hitler, or denying the Holocaust – we’ve somehow managed to get along by tolerating some truly despicable ideas, and trusting our citizens to sort the good out from the bad. The free, unrestricted marketplace may not always work, but it works for now, and as long as we still think it’s worth defending here, we ought not compromise it for the sake of those who may not understand why it works. While I’m not always okay with spreading democracy vis armae, by fire and war, spreading democracy by being a shining beacon to the world, and proving day-by-day that liberty works, is not only fine by me, it’s what I think of as our quintessential mission.

Paradoxically, being that city-on-a-hill may force us to live with some truly filthy stuff. Declining to enforce foreign libel laws, and maintaining our moderate protections for untruthful speech, may make America the mecca of the raving lunatic, the one place in the world where the depraved have the freedom to say whatever awful thought comes to mind, and still dodge the long arm of the law. I say, fine. That’s the experimental system the Founders undertook to create, and while it’s by no means perfect, it’s better than the alternative.

We can’t cave on our fundamental concepts of liberty. If we were to redesign our internal legal system to jive well with the world, and maximize the reciprocal enforcement of judgments, we’d have to toss the jury system along with free speech. Commercial jury verdicts viewed with deep suspicion by some of our peers on the international stage, to the point that they have gone, at times, unenforced. After all, the foreign argument goes, what do commoners know of high matters of corporate finance and restructuring? Enough, I say, that I’m still sitting only two miles north of the beating heart of the global finance system.

I may not often agree with Senator Lieberman. And this may be the one time you see me speaking with hostility about non-Americans and foreign cultures. But this isn’t an issue of xenophobia or intolerance. It’s an issue of preserving American law for Americans. Senators Lieberman & Specter, pass the bill. I’ll be deeply disappointed in any Senator that votes against it. Defending free speech is not a partisan matter.