Friday, March 13, 2009
On April 28, 2008, New York Governor David Paterson signed into law the Libel Terrorism Protection Act, the nation's first legislative attempt at protecting American authors and publishers from a recent explosion of forum shopping, aptly called "libel tourism". Instead of suing American authors in the United States, wealthy litigants are increasingly filing suit in claimant-friendly countries, where the publication and the parties have little connection, but the plaintiff is more likely to win and thus stifle critical reporting. Since its enactment, New York's bold and controversial law has become a national model. Illinois passed its own libel tourism law in August, and [at the time of publication] Congress is currently considering two variations of a similar federal statute, one of which unanimously passed the House of Representatives in September 2008.
While many heralded the New York law as a victory for free speech, even its supporters have identified potential constitutional and policy problems with it. This note explores whether the problem of libel tourism merits such a legislative response and, if so, whether the law is good policy and stays within constitutional parameters. Part I describes the factors that created the forum-shopping trend and assesses the extent of the resulting chilling effect on American authors and publishers. Part II discusses how U.S. courts have responded to the phenomenon by barring enforcement of foreign libel judgments on public policy grounds. Part III considers the Ehrenfeld v. Bin Mahfouz case, which triggered a national response culminating in the New York legislature's rejoinder as well as similar federal bills. Part IV explores constitutional and policy problems posed by the New York law, including: i) jurisdictional overreaching, ii) comity concerns, iii) over-breadth, iv) vagueness, and v) redundancy and inadequacy -- since without the jurisdictional overreaching, it merely codifies the common law and fails to deter future libel tourism. Part V concludes that while the New York law provides an important first step towards protecting authors from the threat of foreign libel judgments, federal legislation should avoid its jurisdictional and over-breadth problems and model a remedy after state anti-SLAPP statutes. This would allow media defendants to recover damages from those true libel tourists who file spurious claims abroad with the purpose of chilling their speech. Such legislation, which singles out and punishes libel tourists, would deter future harassment of American authors and publishers and provide a remedy for those with assets subject to enforcement abroad.
Download the article from SSRN here.