I 

111TH CONGRESS 

1ST SESSION H. R. 1304 

To create a Federal cause of action to determine whether defamation exists 

under United States law in cases in which defamation actions have 

been brought in foreign courts against United States persons on the 

basis of publications or speech in the United States. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 4, 2009 

Mr. KING of New York (for himself, Ms. BERKLEY, Mr. FRANKS of Arizona, 

Mr. ISRAEL, Mr. COBLE, Mr. POE of Texas, Mr. WOLF, Mr. SHADEGG, 

Mr. WESTMORELAND, Mrs. MYRICK, and Mr. BROUN of Georgia) introduced the following bill; which was referred to the Committee on the Judiciary 

A BILL 

To create a Federal cause of action to determine whether 

defamation exists under United States law in cases in 

which defamation actions have been brought in foreign 

courts against United States persons on the basis of 

publications or speech in the United States. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Free Speech Protection 

5 Act of 2009’’. 


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1 SEC. 2. FINDINGS. 

2 The Congress finds the following: 

3 (1) The freedom of speech and the press is en4 shrined in the First Amendment to the United 

5 States Constitution. 

6 (2) Free speech, the free exchange of informa7 tion, and the free expression of ideas and opinions 

8 are essential to the functioning of representative de9 mocracy in the United States. 

10 (3) The free expression and publication by jour11 nalists, academics, commentators, experts, and oth12 ers of the information they uncover and develop 

13 through research and study is essential to the for14 mation of sound public policy and thus to the secu15 rity of Americans. 

16 (4) The First Amendment jurisprudence of the 

17 Supreme Court, articulated in such precedents as 

18 New York Times v. Sullivan, 376 U.S. 254 (1964), 

19 and its progeny, reflects the fundamental value that 

20 Americans place on promoting the free exchange of 

21 ideas and information, requiring in cases involving 

22 public figures a demonstration of actual malice— 

23 that is, that allegedly defamatory, libelous, or slan24 derous statements about public figures are not mere25 ly false but made with knowledge of that falsity or 

26 with reckless disregard of their truth or falsity. 


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1 (5) Some persons are obstructing the free ex2 pression rights of Americans, and the vital interest 

3 of the American people in receiving information on 

4 matters of public importance, by first seeking out 

5 foreign jurisdictions that do not provide the full ex6 tent of free-speech protection that is fundamental in 

7 the United States and then suing Americans in such 

8 jurisdictions in defamation actions based on speech 

9 uttered or published in the United States—speech 

10 that is fully protected under First Amendment juris11 prudence in the United States and the laws of the 

12 several States and the District of Columbia. 

13 (6) Some of these actions are intended not only 

14 to suppress the free speech rights of journalists, aca15 demics, commentators, experts, and other individuals 

16 but to intimidate publishers and other organizations 

17 that might otherwise disseminate or support the 

18 work of those individuals with the threat of prohibi19 tive foreign lawsuits, litigation expenses, and judg20 ments that provide for money damages and other 

21 speech-suppressing relief. Such actions are inten22 tional tortious acts aimed at United States persons, 

23 even though the harmful conduct may have occurred 

24 extraterritorially. 


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1 (7) The governments and courts of some for2 eign countries have failed to curtail this practice, 

3 permitting lawsuits filed by persons who are often 

4 not citizens of those countries, under circumstances 

5 where there is often little or no basis for jurisdiction 

6 over the Americans against whom such suits are 

7 brought. 

8 (8) Some of the plaintiffs bringing such suits 

9 are intentionally and strategically refraining from 

10 filing their suits in the United States, even though 

11 the speech at issue was published in the United 

12 States, in order to avoid the Supreme Court’s First 

13 Amendment jurisprudence and frustrate the protec14 tions it affords Americans. 

15 (9) The Americans against whom such suits are 

16 brought must consequently endure the prohibitive 

17 expense, inconvenience, and anxiety attendant to 

18 being sued in foreign courts for conduct that is pro19 tected by the First Amendment, or decline to answer 

20 such suits and risk the entry of costly default judg21 ments that may be executed in countries other than 

22 the United States where those individuals travel or 

23 own property. 

24 (10) Journalists, academics, commentators, ex25 perts, and others subjected to such suits are sufVerDate Nov 24 2008 06:39 Mar 05, 2009 Jkt 079200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H1304.IH H1304

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1 fering concrete and profound financial and profes2 sional damage for engaging in conduct that is pro3 tected under the United States Constitution and es4 sential to informing the American people, their rep5 resentatives, and other policymakers. 

6 (11) In turn, the American people are suffering 

7 concrete and profound harm because they, their rep8 resentatives, and other government policymakers rely 

9 on the free expression of information, ideas, and 

10 opinions developed by responsible journalists, aca11 demics, commentators, experts, and others for the 

12 formulation of sound public policy, including na13 tional security policy. 

14 (12) The United States respects the sovereign 

15 right of other countries to enact their own laws re16 garding speech, and seeks only to protect the First 

17 Amendment rights of Americans in connection with 

18 speech that occurs, in whole or in part, in the 

19 United States. 

20 SEC. 3. FEDERAL CAUSE OF ACTION. 

21 (a) CAUSE OF ACTION.—Any United States person 

22 against whom a lawsuit is brought in a foreign country 

23 for defamation on the basis of the content of any writing, 

24 utterance, or other speech by that person that has been 

25 published, uttered, or otherwise disseminated primarily in 


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1 the United States may bring an action in a United States 

2 district court specified in subsection (f) against any person 

3 who, or entity which, brought the foreign suit if the writ4 ing, utterance, or other speech at issue in the foreign law5 suit does not constitute defamation under United States 

6 law. 

7 (b) JURISDICTION.—The district court shall have 

8 personal jurisdiction under this section if, in light of the 

9 facts alleged in the complaint, the person or entity bring10 ing the foreign suit described in subsection (a) served or 

11 caused to be served any documents in connection with 

12 such foreign lawsuit on a United States person with assets 

13 in the United States against which the claimant in the 

14 foreign lawsuit could execute if a judgment in the foreign 

15 lawsuit were awarded. 

16 (c) REMEDIES.— 

17 (1) ORDER TO BAR ENFORCEMENT AND OTHER

18 INJUNCTIVE RELIEF.—If the cause of action set 

19 forth in subsection (a) is established, the district 

20 court shall order that any foreign judgment in the 

21 foreign lawsuit in question may not be enforced in 

22 the United States, including by any Federal, State, 

23 or local court, and may order such other injunctive 

24 relief that the court considers appropriate to protect 


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1 the right to free speech under the First Amendment 

2 to the United States Constitution. 

3 (2) DAMAGES.—In addition to the remedy 

4 under paragraph (1), damages may be awarded to 

5 the United States person bringing the action under 

6 subsection (a), based on the following: 

7 (A) The amount of the foreign judgment. 

8 (B) The costs, including all legal fees, at9 tributable to the foreign lawsuit that have been 

10 borne by the United States person. 

11 (C) The harm caused to the United States 

12 person due to decreased opportunities to pub13 lish, conduct research, or generate funding. 

14 (d) TREBLE DAMAGES.—If, in an action brought 

15 under subsection (a), the fact finder determines by a pre16 ponderance of the evidence that the person or entity bring17 ing the foreign lawsuit at issue intentionally engaged in 

18 a scheme to suppress First Amendment rights by discour19 aging publishers or other media not to publish, or discour20 aging employers, contractors, donors, sponsors, or similar 

21 financial supporters not to employ, retain, or support, the 

22 research, writing, or other speech of a journalist, aca23 demic, commentator, expert, or other individual, the fact 

24 finder may award treble damages. 


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1 (e) EXPEDITED DISCOVERY.—Upon the filing of an 

2 action under subsection (a), the court may order expedited 

3 discovery if the court determines, based on the allegations 

4 in the complaint, that the speech at issue in the foreign 

5 defamation action is protected by the First Amendment 

6 to the United States Constitution. 

7 (f) VENUE.—An action under subsection (a) may be 

8 brought by a United States person only in a United States 

9 district court in which the United States person is domi10 ciled, does business, or owns real property that could be 

11 executed against in satisfaction of a judgment in the for12 eign defamation lawsuit giving rise to the action. 

13 (g) TIMING OF ACTION; STATUTE OF LIMITA14 TIONS.— 

15 (1) TIMING.—An action under subsection (a) 

16 may be commenced after the filing of the defamation 

17 lawsuit in a foreign country on which the action is 

18 based. 

19 (2) STATUTE OF LIMITATIONS.—For purposes 

20 of section 1658(a) of title 28, United States Code, 

21 the cause of action under subsection (a) accrues on 

22 the date on which the defamation lawsuit in a for23 eign country on which the cause of action is based 

24 is filed. 


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1 SEC. 4. APPLICABILITY. 

2 This Act applies with respect to any foreign lawsuit 

3 that is described in section 3(a) and is brought in the for4 eign country concerned before, on, or after the date of the 

5 enactment of this Act. 

6 SEC. 5. CONSTRUCTION. 

7 Nothing in this Act limits the right of foreign liti8 gants who bring good faith defamation actions to prevail 

9 against journalists, academics, commentators, and others 

10 who have failed to adhere to standards of professionalism 

11 by publishing false information maliciously or recklessly. 

12 SEC. 6. DEFINITIONS. 

13 In this Act: 

14 (1) DEFAMATION.—The term ‘‘defamation’’ 

15 means any action for defamation, libel, slander, or 

16 similar claim alleging that forms of speech are false 

17 or have caused damage to reputation. 

18 (2) FOREIGN COUNTRY.—The term ‘‘foreign 

19 country’’ means any country other than the United 

20 States. 

21 (3) FOREIGN JUDGMENT.—The term ‘‘foreign 

22 judgment’’ means any judgment of a foreign coun23 try, including the court system of a foreign country, 

24 that grants or denies any form of relief, including 

25 injunctive relief and monetary damages, in a defa26 mation action. 


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1 (4) UNITED STATES.—The term ‘‘United 

2 States’’ means the several States, the District of Co3 lumbia, and any commonwealth, territory, or posses4 sion of the United States. 

5 (5) UNITED STATES PERSON.—The term 

6 ‘‘United States person’’ includes a United States cit7 izen, an alien lawfully admitted for permanent resi8 dence to the United States, and a business entity 

9 lawfully doing business in the United States. 

Æ 


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