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SPEECH Act & 47 USC § 230

Derived From: Emily C. Barbour, The SPEECH Act: The Federal Response to "Libel Tourism", Congressional Research Service Sept. 16, 2010

The 111th Congress considered several proposals to address libel tourism, 67 and ultimately passed the Securing the Protection of our Enduring and Established Constitutional Heritage Act (or the “SPEECH Act”), 68 which was signed into law on August 10, 2010.

The SPEECH Act avoided the constitutional questions that accompanied some of the other proposals. For example, S. 449 and H.R. 1304, which were collectively referred to as the Free Speech Protection Act, would have authorized counter-suits and a basis for exercising personal jurisdiction over a person who served documents related to a foreign defamation lawsuit on a U.S. person. 69 Had this approach been adopted, it may have been viewed as authorizing federal courts to exercise personal jurisdiction beyond the boundaries permitted by due process, which requires the defendants to have “minimum contacts” in the judicial forum, such that the court’s assertion of jurisdiction over them conforms with traditional notions of fairness. 70 For these reasons, as well as concern for international comity, the House Committee on the Judiciary indicated that this approach would be too aggressive. 71

Accordingly, the SPEECH Act does not authorize counter-suits against plaintiffs in foreign libel cases. Instead, the SPEECH Act bars U.S. courts from recognizing or enforcing a foreign judgment for defamation unless certain requirements are satisfied. 72 However, advocates of a federal cause of action have argued that, without the threat of a counter-suit, bars on enforcement like the one created by the SPEECH Act are insufficient to prevent a chilling effect on the speech of U.S. persons. 73

The SPEECH Act prohibits domestic courts from recognizing or enforcing foreign judgments for defamation in any one of three circumstances:

• When the party opposing recognition or enforcement claims that the judgment is inconsistent with the First Amendment to the Constitution, until and unless the domestic court determines that the judgment is consistent with the First Amendment,
• When the party opposing recognition or enforcement establishes that the exercise of personal jurisdiction by the foreign court failed to comport with the due process requirements imposed on domestic courts by the U.S. Constitution, or
• When the foreign judgment is against the provider of an interactive computer service and the party opposing recognition or enforcement claims that the judgment is inconsistent with section 230 of the Communications Act of 1934 (47 U.S.C. § 230) regarding protection for private blocking and screening of offensive material, until and unless the domestic court determines that the judgment is consistent with those provisions. 74

N 74: Some commentators have noted that, in applying section 230 of the Communications Act of 1934 to foreign judgments, the SPEECH Act only extends protection to providers of interactive computer services even though section 230 protects providers and users of interactive computer services. E.g. , Eric Goldman, New Anti-Libel Tourism Act (HR 2765) Extends 47 USC 230 to Foreign Judgments , T ECH . & M ARKETING L. B LOG (Aug. 11, 2010, 9:20 AM), http://blog.ericgoldman.org.

Moreover, in any of those three circumstances, a U.S. citizen opposing recognition or enforcement of the foreign judgment may bring an action in a federal district court for a declaratory judgment that the foreign judgment is repugnant to the Constitution. The SPEECH Act also permits any action brought in a state domestic court to be removed to federal court if there is diversity jurisdiction or one party is a U.S. citizen and the other is either a foreign state or citizen of a foreign state.

The SPEECH Act ensures that a party who appeared in a foreign court rendering a foreign judgment to which the act applies is not deprived of the right to oppose recognition or enforcement of that subsequent judgment. If the party opposing recognition or enforcement of the judgment prevails, the act allows the award of reasonable attorney fees under certain conditions.

Finally, the SPEECH Act appears to preempt state laws related to foreign judgments. 75

Preemption of State Libel Tourism Laws

The enactment of the federal SPEECH Act may raise questions about its effect in state court proceedings in states with a libel tourism statute. It appears that, to the extent that the federal law places greater restrictions on the nonrecognition of foreign defamation judgments, it will be deemed to conflict and consequently preempt the relevant state law pursuant to the Supremacy Clause of the U.S. Constitution. 76 The Supremacy Clause states that the U.S. Constitution and laws made in pursuance thereof “shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any [s]tate to the contrary notwithstanding.” 77

In general, federal preemption of state law can occur where the federal law has an express provision to that effect, where there is a perceived conflict between the state and federal law, or where the scope of the statute indicates that Congress intended to occupy the field exclusively. 78 The Court has identified two forms of implied conflict preemption: situations in which it is impossible for private parties to comply with both state and federal requirements and situations in which the state law frustrates the purpose of Congress. 79 However, these categories should not be interpreted formalistically 80 because the ultimate touchstone of the preemption analysis is whether, and to what extent, Congress intended, explicitly or implicitly, for the federal law to preempt relevant state law. 81 Like many other federal statutes, the SPEECH Act does not contain an express preemption provision, but its language and legislative history strongly suggest that Congress intended to preempt state laws that conflict with the accomplishment of its purpose. 82

The primary evidence of Congress’s preemptive intent is the explicit language of the SPEECH Act itself. The statute states that its provisions are applicable in all “domestic” courts and defines a “domestic court” to include both state and federal courts, “notwithstanding any other provision of [f]ederal or [s]tate law.” 83 In addition, House and the Senate Judiciary Committee reports indicate that Congress believed the SPEECH Act would preempt “[s]tate laws related to foreign judgments.” 84 Finally, the importance of ensuring a uniform approach towards foreign libel judgments is also likely to weigh in favor of preemption. 85

Congressional intent aside, the preemptive effect of the Supremacy Clause can be constrained by other constitutional principles, notably federalism 86 and separation of powers, 87 leading courts to apply a presumption against preemption when the federal law in question appears to interfere with a traditional area of state law. 88 Ultimately, whether such a presumption applies depends primarily on how the federal law is best characterized. 89 In the context of the SPEECH Act, the law’s subject matter could be described as state courts and state judicial procedure, subjects that typically fall within the purview of the state legislation. 90 However, the SPEECH Act is perhaps more aptly characterized as a law that ensures uniformity and predictability in the federal and state posture towards foreign libel judgments and, therefore, it will likely be perceived as a law addressing foreign affairs, a subject over which the Congress has the primary lawmaking authority. 91 Accordingly, principles of federalism or separation of powers should not dissuade a court from deeming relevant state law preempted by the SPEECH Act.

Law

SPEECH Act in 2010 P.L. 111-223 codified at 28 U.S.C. §§ 4101-4105: requiring US courts to apply both the First Amendment and Section 230 in assessing foreign defamation judgments .

Caselaw:

• Global Royalties, D Arizona 2007 A third party made comments on defendant's website ripoffreport.com about plaintiff. Plaintiff received a judgment in Canada enjoining defendant. Plaintiff seeks enforcement in the US . Defendant raises CDA sec. 230 as a defense for third party content. Court granted defendant's motion to dismiss.

Legislation

• Free Speech Protection Act of 2009, S. 449 and H.R. 1304, 111 th Cong. 1st Sess.;
• Securing the Protection of our Enduring and Established Constitutional Heritage Act (SPEECH Act), S. 3518 and H.R. 2764, 111 th Cong., 1st Sess. 

Hearings

• Are Foreign Libel Lawsuits Chilling Americans’ First Amendment Rights?: Hearing Before the S. Comm. on the Judiciary , 111 th Cong. (Feb. 23, 2010) (written testimony of Kurt Wimmer, Partner, Covington & Burling), http://judiciary.senate.gov/hearings/testimony.cfm?id= 4414&wit_id=9121 (asserting that because “the very act of rendering a foreign judgment has immediate and damaging effects on [a] publisher or author,” a lack of enforcement is insufficient to prevent a chilling effect). See also S.Rept. 111-224, at 10 (2010) (stating the additional views of Senator Jon Kyl that “Congress needs to pass broader measures that permit U.S. citizens accused of libel in foreign courts to force their accusers to pay for legal fees incurred abroad and, in certain cases, additional damages ... We support this bill as a good first step toward addressing an important problem, but there is more that can, and should, be done.”).