I’m glad to see a couple of important Senators drawing attention to this subject (and I'm proud of my native state of New York for taking the initiative on it). Sens. Specter and Lieberman co-authored an op-ed in the Wall Street Journal pointing to how easy Americans can be sued in foreign courts (like the UK) under libel laws that are heavily weighted against publishers. Note the scenario they use as example:
In 2003, U.S. scholar Rachel Ehrenfeld asserted in her book, "Funding Evil: How Terrorism Is Financed and How to Stop It," that Saudi banker Khalid Bin Mahfouz helped fund Osama bin Laden. The book was published in the U.S. by a U.S. company. But 23 copies were bought online by English residents, so English courts permitted the Saudi to file a libel suit there.
As in many areas of modern life, laws are struggling to keep pace. Either they assume outdated business models in the face of creative collaboration and the prospect of name recognition for young artists through file sharing, or the very international nature of communication and information brokering today.
If I make a point to buy a book in German from amazon.de, I don’t have the expectation that I could sue the author in this country, since there was no intention to have major distribution here, even though it was always possible. Maybe our laws do allow me to sue the author in an American court, but I don’t know if they should. Does the truly tiny distribution of Ehrenfeld’s book in the UK really give British courts the right to allow a Saudi to sue an American?
The ability to speak freely and challenge people to give reasons for public actions is a beauty of the First Amendment. While I don’t think it was meant to protect “art” depicting obscene desecrations of the symbols of my (or anyone else’s) faith, the First Amendment was meant for just the type of thing Ehrenfeld is trying to do. Even if she doesn’t have all of her facts straight, the idea is that getting her assertions out in public is worth encouraging, b/c our Founders thought that the public should be the judge of speech, not the government.
The war on terror has (or at least needs to have) a major public diplomacy component. IMHO, the West should be challenging the radical segments of the Muslim world to justify themselves intellectually before the court of public opinion, insisting that you can’t riot or kill people when you don’t get what you want like someone who hasn’t grown psychologically past early childhood. If you are right, you have a legitimate chance to convince everyone. It is this very open and terrifyingly just invitation to justify themselves in public that prompts the terrorist propagandists (and don’t think there aren’t any) to use tactics like suing in British court. It is a type of procedural warfare that allows them to silence unpleasant voices without having to argue reasonably. Hence this interesting facet of the proposed law: “If a jury finds that the foreign suit is part of a scheme to suppress free speech rights, it may award treble damages.” I don’t know how easy or impossible this would be to prove in court, but it’s good that they recognize it as a strategy.
It would be nice if the US and the UK could come up with some joint advisory committee to look at protecting our citizens from their laws when neither plaintiff nor defendant have ever set foot in Britain. In the meantime, if the UK doesn’t do anything, we definitely should. It’s too bad the UK doesn’t see the public diplomacy value to itself in moderating speech laws that are begging to be abused.