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Allan R. Adler's letter to the Committee on the Judiciary, United States Senate Hon. Patrick Leahy, Chairman Dear Senator Leahy: On behalf of the Association of American Publishers (AAP) and its more than 300 members I am writing to urge prompt and favorable action on S. 449, the Free Speech Protection Act of 2009, which is currently pending before the Judiciary Committee. The legislation is designed to address the problem of “libel tourism,” the cynical exploitation of plaintiff-friendly foreign libel laws as a weapon to intimidate and silence U.S. authors and publishers. While we are gratified that Congress is finally turning its attention to this serious threat to First Amendment rights, we believe that H.R. 2765, the libel tourism bill passed by the House in June, does not go far enough and that S. 449 would provide the necessary and proper legal tools to deal with this threat by creating a federal cause of action that will allow American authors and publishers subjected to meritless foreign libel suits to seek declaratory relief in a U.S. court in order to defuse the threat of an enforcement proceeding. Concerns have arisen in some quarters with respect to due process limits on the exercise of personal jurisdiction, norms of private international law, and Article III limits on the jurisdiction of the federal courts. To meet these concerns we suggest some modifications to S. 449 that would give U.S. authors and publishers the means to remove the threat of a foreign libel judgment without doing damage to our Constitutional values or to our international relations. We believe that making the mere filing of a foreign defamation action unlawful risks sending a counterproductive message of disrespect for differing foreign legal systems. The legislation should provide that a foreign defamation judgment would need to be rendered before a declaratory judgment action could be undertaken. Concerns arising from the constitutional “minimum contacts” limitation on the exercise of personal jurisdiction under the Due Process Clause can be met by predicating the exercise of personal jurisdiction on both the service of judicial documents and the issuance of a foreign court judgment requiring the U.S. author or publisher to take speech-related action in the United States such as issuing an apology or removing content from the Internet. While several of the most recent high-profile examples of libel tourism involve judgments obtained in England by Saudis implicated in the funding of terrorism, the threat is wider and more insidious. The sale of books over the Internet exposes U.S. authors and publishers to the danger of being sued almost anywhere in the world, and libel tourist litigation remains a threat in any country where our strong constitutional free speech protections are absent. We urge the Judiciary Committee to move quickly and decisively in approving legislation to counter this threat. Sincerely, Allan R. Adler
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