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Securing The Protection Of Our Enduring And Established Constitutional Heritage

Sen. Patrick J. Leahy

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Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of Calendar No. 460, H.R. 2765.

The clerk will report the bill by title.

The legislative clerk read as follows:

A bill (H.R. 2765) to amend title 28, United States Code, to prohibit recognition and enforcement of foreign defamation judgments and certain foreign judgments against the providers of interactive computer services.

There being no objection, the Senate proceeded to consider the bill, which had been reported from the Committee on the Judiciary, with an amendment to strike all after the enacting clause and insert in lieu thereof the following:

This Act may be cited as the ``Securing the Protection of our Enduring and Established Constitutional Heritage Act'' or the ``SPEECH Act''.

Congress finds the following: (1) The freedom of speech and the press is enshrined in the first amendment to the Constitution, and is necessary to promote the vigorous dialogue necessary to shape public policy in a representative democracy. (2) Some persons are obstructing the free expression rights of United States authors and publishers, and in turn chilling the first amendment to the Constitution of the United States interest of the citizenry in receiving information on matters of importance, by seeking out foreign jurisdictions that do not provide the full extent of free-speech protections to authors and publishers that are available in the United States, and suing a United States author or publisher in that foreign jurisdiction. (3) These foreign defamation lawsuits not only suppress the free speech rights of the defendants to the suit, but inhibit other written speech that might otherwise have been written or published but for the fear of a foreign lawsuit. (4) The threat of the libel laws of some foreign countries is so dramatic that the United Nations Human Rights Committee examined the issue and indicated that in some instances the law of libel has served to discourage critical media reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work. The advent of the internet and the international distribution of foreign media also create the danger that one country's unduly restrictive libel law will affect freedom of expression worldwide on matters of valid public interest. (5) Governments and courts of foreign countries scattered around the world have failed to curtail this practice of permitting libel lawsuits against United States persons within their courts, and foreign libel judgments inconsistent with United States first amendment protections are increasingly common.

(a) In General.--Part VI of title 28, United States Code, is amended by adding at the end the following:

Sen. Patrick J. Leahy

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Mr. President, I ask unanimous consent that the committee-reported substitute amendment be agreed to, the bill, as amended, be read a third time and passed, the motions to reconsider be laid upon the table, with no intervening action or debate, and any statements related to the bill be printed in the Record.

Without objection, it is so ordered.

The committee amendment in the nature of a substitute was agreed to.

The amendment was ordered to be engrossed and the bill to be read a third time.

The bill was read the third time.

The bill (H.R. 2765), as amended, was passed.

Sen. Patrick J. Leahy

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Mr. President, today the Senate has passed important bipartisan legislation to reduce the chilling effect that foreign libel lawsuits are having on Americans' first amendment rights.

I am the son of printers and I consider this a matter of great importance. My parents told me from the time I was a child: Believe in and uphold the first amendment. It is the basis of our democracy. It guarantees us the right to practice any religion we want or none if we want. And it protects the right of free speech. Those protections guarantee diversity. If you have a constitution that guarantees diversity, you guarantee a democracy.

That is what this does. I wish to thank Senator Sessions, the ranking member of the Senate Judiciary Committee, for working with me on this bill.

Let me speak a little bit about what the bill does. The Securing the Protection of our Enduring and Established Constitutional Heritage Act or, as we call it, the SPEECH Act, will ensure that American courts will not enforce foreign libel judgments from countries where free speech protections are lower than what our Constitution affords against American journalists, authors, and publishers.

Too frequently, foreign plaintiffs bring libel suits against American writers and publishers in countries where the plaintiff or the publication lacks any significant connection to the foreign forum. The lawsuit is brought there because of that foreign country's weaker plaintiff-friendly libel laws. This is known colloquially as libel tourism.

In other words, if somebody in the United States writes a book, probably very accurate, about some despot or some leader of a country who has done criminal acts, has stolen the property of that country or any one of a number of things--it could be very accurate and, in our country, truth is a defense--what they will do is maybe order online a couple copies of the books and deliver them to another country with weak libel laws and then seek judgments against the author, against the publisher, against newspapers that may have published excerpts of it; everything to chill any criticism of those who have either breached human rights or stolen from their own country and on and on.

On a broad scale, libel tourism results in a race to the bottom. It causes America to defer to a country with the most chilling and restrictive free speech standard determining what they can write or publish. This undermines our first amendment. The first amendment, as I said earlier, guarantees the diversity of thought and opinion in this country which actually allows and determines and guarantees that democracy.

The freedoms of speech and the press are cornerstones of our democracy. They enable vigorous debate, and an exchange of ideas that shapes our political process. Reporters, authors and publishers are among the primary sources of these ideas, and their ability to disseminate them through their writings is critical to our democracy. The broad dissemination of materials through the Internet, as well as the increased number of worldwide newspapers and periodicals, has compounded the threat of libel tourism.

This problem is well documented. Two years ago, the United Nations' Human Rights Committee observed that one country's libel laws ``discourage[d] critical media reporting on matters of serious public interest, adversely affect[ed] the ability of scholars and journalists to publish their work,'' and ``affect[ed] freedom of expression worldwide on matters of valid public interest.''

Several States, to their credit, have enacted legislation to combat this problem, but we need a national response. While we can't legislate changes to foreign laws that are chilling protected speech in our country, what we can do to uphold the right of free speech in our own country is assure that our courts do not become a tool to uphold foreign libel judgments that undermine American first amendment or due process rights. The SPEECH Act is an important step toward reducing this chilling of American free speech

The SPEECH Act is an important step toward reducing this chilling of American free speech. Americans have a great gift in their right of free speech. Every single Senator, Republican and Democratic, should join, as we have in this case, to protect America's rights.

The SPEECH Act is the product of hard work and extensive negotiations on both sides of the aisle, and the process is certainly mindful about principles of international comity. Many supporters would not have written this bill in this exact way, but all recognize that a bipartisan compromise is an important step in confronting the libel tourism issue. Without it, we could not pass this bill.

Among the supporters are the Vermont Library Association, former Attorney General Michael Mukasey, the former Director of the Central Intelligence Agency, James Woolsey, the American Library Association, the Association of American Publishers, the Reporters Committee for Freedom of the Press, the American Civil Liberties Union, Net Coalition, and renowned first amendment lawyer, Floyd Abrams.

I would also like to recognize Dr. Rachel Ehrenfeld, Director of the American Center for Democracy, who herself has been the victim of a libel suit in the United Kingdom, and has been a tremendous advocate for Congressional action in this area.

I wish to thank Senators Specter, Schumer, and Lieberman for their work in raising this important issue in the Senate and Representative Cohen for his hard work on libel tourism legislation in the other body. I am pleased the Senate has adopted this bipartisan legislation. I look forward to its prompt consideration and adoption by the House and to the President signing it into law.

Mr. President, I do not see anybody else seeking recognition, so I will suggest the absence of a quorum.

The clerk will call the roll.

The legislative clerk proceeded to call the roll.

Sen. Jeff Sessions

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Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Without objection, it is so ordered.