I 

110TH CONGRESS 

2D SESSION H. R. 5814 

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 

APRIL 16, 2008 

Mr. KING of New York 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 2008’’. 

6 SEC. 2. FINDINGS. 

7 The Congress finds the following: 


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1 (1) The freedom of speech and the press is en2 shrined in the First Amendment to the United 

3 States Constitution. 

4 (2) Free speech, the free exchange of informa5 tion, and the free expression of ideas and opinions 

6 are essential to the functioning of representative de7 mocracy in the United States. 

8 (3) The free expression and publication by jour9 nalists, academics, commentators, experts, and oth10 ers of the information they uncover and develop 

11 through research and study is essential to the for12 mation of sound public policy and thus to the secu13 rity of Americans. 

14 (4) The First Amendment jurisprudence of the 

15 Supreme Court, articulated in such precedents as 

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

17 and its progeny, reflects the fundamental value that 

18 Americans place on promoting the free exchange of 

19 ideas and information, requiring in cases involving 

20 public figures a demonstration of actual malice— 

21 that is, that allegedly defamatory, libelous, or slan22 derous statements about public figures are not mere23 ly false but made with knowledge of that falsity or 

24 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. 

22 (7) The governments and courts of some for23 eign countries have failed to curtail this practice, 

24 permitting lawsuits filed by persons who are often 

25 not citizens of those countries, under circumstances 


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1 where there is often little or no basis for jurisdiction 

2 over the Americans against whom such suits are 

3 brought. 

4 (8) Some of the plaintiffs bringing such suits 

5 are intentionally and strategically refraining from 

6 filing their suits in the United States, even though 

7 the speech at issue was published in the United 

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

9 Amendment jurisprudence and frustrate the protec10 tions it affords Americans. 

11 (9) The Americans against whom such suits are 

12 brought must consequently endure the prohibitive 

13 expense, inconvenience, and anxiety attendant to 

14 being sued in foreign courts for conduct that is pro15 tected by the First Amendment, or decline to answer 

16 such suits and risk the entry of costly default judg17 ments that may be executed in countries other than 

18 the United States where those individuals travel or 

19 own property. 

20 (10) Journalists, academics, commentators, ex21 perts, and others subjected to such suits are suf22 fering concrete and profound financial and profes23 sional damage for engaging in conduct that is pro24 tected under the United States Constitution and esVerDate Aug 31 2005 05:14 Apr 19, 2008 Jkt 069200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H5814.IH H5814

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1 sential to informing the American people, their rep2 resentatives, and other policy-makers. 

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

4 concrete and profound harm because they, their rep5 resentatives, and other government policymakers rely 

6 on the free expression of information, ideas, and 

7 opinions developed by responsible journalists, aca8 demics, commentators, experts, and others for the 

9 formulation of sound public policy, including na10 tional security policy. 

11 (12) The United States respects the sovereign 

12 right of other countries to enact their own laws re13 garding speech, and seeks only to protect the First 

14 Amendment rights of Americans in connection with 

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

16 United States. 

17 SEC. 3. FEDERAL CAUSE OF ACTION. 

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

19 against whom a lawsuit is brought in a foreign country 

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

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

22 published, uttered, or otherwise disseminated in the 

23 United States may bring an action in a United States dis24 trict court specified in subsection (f) against any person 

25 who, or entity which, brought the foreign suit if the writVerDate Aug 31 2005 05:14 Apr 19, 2008 Jkt 069200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H5814.IH H5814

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1 ing, utterance, or other speech at issue in the foreign law2 suit does not constitute defamation under United States 

3 law. 

4 (b) JURISDICTION.—It shall be sufficient to establish 

5 jurisdiction over the person or entity bringing a foreign 

6 lawsuit described in subsection (a) that such person or en7 tity has filed the lawsuit against a United States person, 

8 or that such United States person has assets in the United 

9 States against which the claimant in the foreign action 

10 could execute if a judgment in the foreign lawsuit were 

11 awarded. 

12 (c) REMEDIES.— 

13 (1) ORDER TO BAR ENFORCEMENT AND OTHER

14 INJUNCTIVE RELIEF.—If the cause of action set 

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

16 court shall order that any foreign judgment in the 

17 foreign lawsuit in question may not be enforced in 

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

19 or local court, and may order such other injunctive 

20 relief that the court considers appropriate to protect 

21 the right to free speech under the First Amendment 

22 to the United States Constitution. 

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

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


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1 the United States person bringing the action under 

2 subsection (a), based on the following: 

3 (A) The amount of the foreign judgment. 

4 (B) The costs, including all legal fees, at5 tributable to the foreign lawsuit that have been 

6 borne by the United States person. 

7 (C) The harm caused to the United States 

8 person due to decreased opportunities to pub9 lish, conduct research, or generate funding. 

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

11 under subsection (a), the factfinder determines by a pre12 ponderance of the evidence that the person or entity bring13 ing the foreign lawsuit at issue intentionally engaged in 

14 a scheme to suppress First Amendment rights by discour15 aging publishers or other media not to publish, or discour16 aging employers, contractors, donors, sponsors, or similar 

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

18 research, writing, or other speech of a journalist, aca19 demic, commentator, expert, or other individual, the 

20 factfinder may award treble damages. 

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

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

23 discovery if the court determines, based on the allegations 

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


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1 defamation action is protected by the First Amendment 

2 to the United States Constitution. 

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

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

5 district court in which the United States person is domi6 ciled, does business, or owns real property that could be 

7 executed against in satisfaction of a judgment in the for8 eign defamation lawsuit giving rise to the action. 

9 (g) TIMING OF ACTION; STATUTE OF LIMITA10 TIONS.— 

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

12 may be commenced after the filing of the defamation 

13 lawsuit in a foreign country on which the action is 

14 based. 

15 (2) STATUTE OF LIMITATIONS.—For purposes 

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

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

18 the date on which the defamation lawsuit in a for19 eign country on which the cause of action is based 

20 is filed. 

21 SEC. 4. APPLICABILITY. 

22 This Act applies with respect to any foreign lawsuit 

23 that is described in section 3(a) and is brought in the for24 eign country concerned before, on, or after the date of the 

25 enactment of this Act. 


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1 SEC. 5. CONSTRUCTION. 

2 Nothing in this Act limits the right of foreign liti3 gants who bring good faith defamation actions to prevail 

4 against journalists, academics, commentators, and others 

5 who have failed to adhere to standards of professionalism 

6 by publishing false information maliciously or recklessly. 

7 SEC. 6. DEFINITIONS. 

8 In this Act: 

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

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

11 similar claim alleging that forms of speech are false 

12 or have caused damage to reputation. 

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

14 country’’ means any country other than the United 

15 States. 

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

17 judgment’’ means any judgment of a foreign coun18 try, including the court system of a foreign country, 

19 that grants or denies any form of relief, including 

20 injunctive relief and monetary damages, in a defa21 mation action. 

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

23 States’’ means the several States, the District of Co24 lumbia, and any commonwealth, territory, or posses25 sion of the United States. 


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1 (5) UNITED STATES PERSON.—The term 

2 ‘‘United States person’’ includes a United States cit3 izen, an alien lawfully admitted for permanent resi4 dence to the United States, and a business entity 

5 lawfully doing business in the United States. 

Æ 


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