II 

111TH CONGRESS 

2D SESSION S. 3518 

To amend title 28, United States Code, to prohibit recognition and enforcement of foreign defamation judgments in United States Courts where 

those judgments undermine the first amendment to the Constitution 

of the United States, and to provide a cause of action for declaratory 

judgment relief against a party who has brought a successful foreign 

defamation action whose judgment undermines the first amendment. 

IN THE SENATE OF THE UNITED STATES 

JUNE 22, 2010 

Mr. LEAHY (for himself, Mr. SESSIONS, Mr. SPECTER, Mr. SCHUMER, and 

Mr. LIEBERMAN) introduced the following bill; which was read twice and 

referred to the Committee on the Judiciary 

A BILL 

To amend title 28, United States Code, to prohibit recognition and enforcement of foreign defamation judgments 

in United States Courts where those judgments undermine the first amendment to the Constitution of the 

United States, and to provide a cause of action for 

declaratory judgment relief against a party who has 

brought a successful foreign defamation action whose 

judgment undermines the first amendment. 

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


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Securing the Protec3 tion of our Enduring and Established Constitutional Her4 itage Act’’ or the ‘‘SPEECH Act’’. 

5 SEC. 2. FINDINGS. 

6 Congress finds the following: 

7 (1) The freedom of speech and the press is en8 shrined in the first amendment to the Constitution, 

9 and is necessary to promote the vigorous dialogue 

10 necessary to shape public policy in a representative 

11 democracy. 

12 (2) Some persons are obstructing the free ex13 pression rights of United States authors and pub14 lishers, and in turn chilling the first amendment to 

15 the Constitution of the United States interest of the 

16 citizenry in receiving information on matters of im17 portance, by seeking out foreign jurisdictions that do 

18 not provide the full extent of free-speech protections 

19 to authors and publishers that are available in the 

20 United States, and suing a United States author or 

21 publisher in that foreign jurisdiction. 

22 (3) These foreign defamation lawsuits not only 

23 suppress the free speech rights of the defendants to 

24 the suit, but inhibit other written speech that might 

25 otherwise have been written or published but for the 

26 fear of a foreign lawsuit. 


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1 (4) The threat of the libel laws of some foreign 

2 countries are so dramatic that the United Nations 

3 Human Rights Committee examined the issue and 

4 indicated that in some instances the law of libel has 

5 served to discourage critical media reporting on mat6 ters of serious public interest, adversely affecting the 

7 ability of scholars and journalists to publish their 

8 work. The advent of the internet and the inter9 national distribution of foreign media also create the 

10 danger that one country’s unduly restrictive libel law 

11 will affect freedom of expression worldwide on mat12 ters of valid public interest. 

13 (5) Governments and courts of foreign coun14 tries scattered around the world have failed to cur15 tail this practice of permitting libel lawsuits against 

16 United States persons within their courts, and for17 eign libel judgments inconsistent with United States 

18 first amendment protections are increasingly com19 mon. 

20 SEC. 3. RECOGNITION OF FOREIGN DEFAMATION JUDG21 MENTS. 

22 (a) IN GENERAL.—Part VI of title 28, United States 

23 Code, is amended by adding at the end the following: 

24 ‘‘CHAPTER 181—FOREIGN JUDGMENTS 

‘‘Sec. 

‘‘4101. Definitions. 

‘‘4102. Recognition of foreign defamation judgments. 


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‘‘4103. Removal. 

‘‘4104. Declaratory judgments. 

‘‘4105. Attorney’s fees. 

1 ‘‘§ 4101. Definitions 

2 ‘‘In this chapter: 

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

4 means any action or other proceeding for defama5 tion, libel, slander, or similar claim alleging that 

6 forms of speech are false, have caused damage to 

7 reputation or emotional distress, have presented any 

8 person in a false light, or have resulted in criticism, 

9 dishonor, or condemnation of any person. 

10 ‘‘(2) DOMESTIC COURT.—The term ‘domestic 

11 court’ means a Federal court or a court of any 

12 State. 

13 ‘‘(3) FOREIGN COURT.—The term ‘foreign 

14 court’ means a court, administrative body, or other 

15 tribunal of a foreign country. 

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

17 judgment’ means a final judgment rendered by a 

18 foreign court. 

19 ‘‘(5) STATE.—The term ‘State’ means each of 

20 the several States, the District of Columbia, and any 

21 commonwealth, territory, or possession of the United 

22 States. 

23 ‘‘(6) UNITED STATES PERSON.—The term 

24 ‘United States person’ means— 


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1 ‘‘(A) a United States citizen; 

2 ‘‘(B) an alien lawfully admitted for perma3 nent residence to the United States; 

4 ‘‘(C) an alien lawfully residing in the 

5 United States at the time that the speech that 

6 is the subject of the foreign defamation action 

7 was researched, prepared, or disseminated; or 

8 ‘‘(D) a business entity incorporated in, or 

9 with its primary location or place of operation 

10 in, the United States. 

11 ‘‘§ 4102. Recognition of foreign defamation judgments 

12 ‘‘(a) FIRST AMENDMENT CONSIDERATIONS.— 

13 ‘‘(1) IN GENERAL.—Notwithstanding any other 

14 provision of Federal or State law, a domestic court 

15 shall not recognize or enforce a foreign judgment for 

16 defamation unless the domestic court determines 

17 that— 

18 ‘‘(A) the defamation law applied in the for19 eign court’s adjudication provided at least as 

20 much protection for freedom of speech and 

21 press in that case as would be provided by the 

22 first amendment to the Constitution of the 

23 United States and by the constitution and law 

24 of the State in which the domestic court is lo25 cated; or 


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1 ‘‘(B) even if the defamation law applied in 

2 the foreign court’s adjudication did not provide 

3 as much protection for freedom of speech and 

4 press as the first amendment to the Constitu5 tion of the United States and the constitution 

6 and law of the State, the party opposing rec7 ognition or enforcement of that foreign judg8 ment would have been found liable for defama9 tion by a domestic court applying the first 

10 amendment to the Constitution of the United 

11 States and the constitution and law of the State 

12 in which the domestic court is located. 

13 ‘‘(2) BURDEN OF ESTABLISHING APPLICATION

14 OF DEFAMATION LAWS.—The party seeking recogni15 tion or enforcement of the foreign judgment shall 

16 bear the burden of making the showings required 

17 under subparagraph (A) or (B). 

18 ‘‘(b) JURISDICTIONAL CONSIDERATIONS.— 

19 ‘‘(1) IN GENERAL.—Notwithstanding any other 

20 provision of Federal or State law, a domestic court 

21 shall not recognize or enforce a foreign judgment for 

22 defamation unless the domestic court determines 

23 that the exercise of personal jurisdiction by the for24 eign court comported with the due process requireVerDate Mar 15 2010 02:37 Jun 23, 2010 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3518.IS S3518

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1 ments that are imposed on domestic courts by the 

2 Constitution of the United States. 

3 ‘‘(2) BURDEN OF ESTABLISHING EXERCISE OF

4 JURISDICTION.—The party seeking recognition or 

5 enforcement of the foreign judgment shall bear the 

6 burden of making the showing that the foreign 

7 court’s exercise of personal jurisdiction comported 

8 with the due process requirements that are imposed 

9 on domestic courts by the Constitution of the United 

10 States. 

11 ‘‘(c) JUDGMENT AGAINST PROVIDER OF INTER12 ACTIVE COMPUTER SERVICE.— 

13 ‘‘(1) IN GENERAL.—Notwithstanding any other 

14 provision of Federal or State law, a domestic court 

15 shall not recognize or enforce a foreign judgment for 

16 defamation against the provider of an interactive 

17 computer service, as defined in section 230 of the 

18 Communications Act of 1934 (47 U.S.C. 230) unless 

19 the domestic court determines that the judgment 

20 would be consistent with section 230 if the informa21 tion that is the subject of such judgment had been 

22 provided in the United States. 

23 ‘‘(2) BURDEN OF ESTABLISHING CONSISTENCY

24 OF JUDGMENT.—The party seeking recognition or 

25 enforcement of the foreign judgment shall bear the 


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1 burden of establishing that the judgment is con2 sistent with section 230. 

3 ‘‘(d) APPEARANCES NOT A BAR.—An appearance by 

4 a party in a foreign court rendering a foreign judgment 

5 to which this section applies shall not deprive such party 

6 of the right to oppose the recognition or enforcement of 

7 the judgment under this section, or represent a waiver of 

8 any jurisdictional claims. 

9 ‘‘(e) RULE OF CONSTRUCTION.—Nothing in this sec10 tion shall be construed to— 

11 ‘‘(1) effect the enforceability of any foreign 

12 judgment other than a foreign judgment for defama13 tion; or 

14 ‘‘(2) limit the applicability of section 230 of the 

15 Communications Act of 1934 (47 U.S.C. 230) to 

16 causes of action for defamation. 

17 ‘‘§ 4103. Removal 

18 ‘‘In addition to removal allowed under section 1441, 

19 any action brought in a State domestic court to enforce 

20 a foreign judgment for defamation in which— 

21 ‘‘(1) any plaintiff is a citizen of a State dif22 ferent from any defendant; 

23 ‘‘(2) any plaintiff is a foreign state or a citizen 

24 or subject of a foreign state and any defendant is a 

25 citizen of a State; or 


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1 ‘‘(3) any plaintiff is a citizen of a State and any 

2 defendant is a foreign state or citizen or subject of 

3 a foreign state, 

4 may be removed by any defendant to the district court 

5 of the United States for the district and division embrac6 ing the place where such action is pending without regard 

7 to the amount in controversy between the parties. 

8 ‘‘§ 4104. Declaratory judgments 

9 ‘‘(a) CAUSE OF ACTION.— 

10 ‘‘(1) IN GENERAL.—Any United States person 

11 against whom a foreign judgment is entered on the 

12 basis of the content of any writing, utterance, or 

13 other speech by that person that has been published, 

14 may bring an action in district court, under section 

15 2201(a), for a declaration that the foreign judgment 

16 is repugnant to the Constitution or laws of the 

17 United States. For the purposes of this paragraph, 

18 a judgment is repugnant to the Constitution or laws 

19 of the United States if it would not be enforceable 

20 under section 4102(a), (b), or (c). 

21 ‘‘(2) BURDEN OF ESTABLISHING UNENFORCE22 ABILITY OF JUDGMENT.—The party bringing an ac23 tion under paragraph (1) shall bear the burden of 

24 establishing that the foreign judgment would not be 

25 enforceable under section 4102(a), (b), or (c). 


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1 ‘‘(b) NATIONWIDE SERVICE OF PROCESS.—Where an 

2 action under this section is brought in a district court of 

3 the United States, process may be served in the judicial 

4 district where the case is brought or any other judicial 

5 district of the United States where the defendant may be 

6 found, resides, has an agent, or transacts business. 

7 ‘‘§ 4105. Attorneys’ fees 

8 ‘‘In any action brought in a domestic court to enforce 

9 a foreign judgment for defamation, including any such ac10 tion removed from State court to Federal court, the do11 mestic court shall, absent exceptional circumstances, allow 

12 the party opposing recognition or enforcement of the judg13 ment a reasonable attorney’s fee if such party prevails in 

14 the action on a ground specified in section 4102(a), (b), 

15 or (c).’’. 

16 (b) SENSE OF CONGRESS.—It is the Sense of the 

17 Congress that for the purpose of pleading a cause of action 

18 for a declaratory judgment, a foreign judgment for defa19 mation or any similar offense as described under chapter 

20 181 of title 28, United States Code, (as added by this Act) 

21 shall constitute a case of actual controversy under section 

22 2201(a) of title 28, United States Code. 


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1 (c) TECHNICAL AND CONFORMING AMENDMENT.— 

2 The table of chapters for part VI of title 28, United States 

3 Code, is amended by adding at the end the following: 

‘‘181. Foreign judgments ................................................................. 4101.’’. 

Æ 


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