Congressional intent and judicial interpretation of the first amendment may conflict. Two recent examples:
The US Senate just passed by unanimous consent the Securing the Protection of our Enduring and Established Constitutional Heritage Act, HR 2765 (SPEECH Act). It is expected to pass the House. There’s little reason that the president shouldn’t sign off.
My good friend Rachel Ehrenfeld, doughty immigrant that she is, took our Constitution to heart and waged an at first solitary campaign to restrict “libel tourism” when she was its victim for a book she’d written exposing the enemy-funding financial dealings of a wealthy Arab. She acquired powerful allies, across the political spectrum, until New York State passed a law that required judgments in foreign courts where our level of free speech protections do not rule to meet US standards in order to be enforced in the US.
Below the fold is Rachel’s press release. Here are the AP and here the AFP news reports.
In past conversations with Rachel I’ve had some concerns about how US standards of free speech may be interpreted by the courts. Those in positions to know, she says, feel US standards of libel are well-enough defined so there’s confidence in prevailing without undue blockage of the Congressional intent. So be it to see.
SPEECH Act Passes U.S. Senate by Unanimous Consent
Dr. Rachel Ehrenfeld, Founder of the Movement Against Libel Tourism, Lauds Senate Leadership for Passing Bipartisan HR 2765 (as amended by the Leahy-Sessions SPEECH Act) by Unanimous Consent
The U.S. House of Representatives, which already passed HR 2765 introduced by Congressman Steve Cohen (D-TN) by 433-2, has indicated that they it pass the same bill easily within days
New York, NY - July 20, 2010: Dr. Rachel Ehrenfeld, author of
Funding Evil: How Terrorism is Financed - and How to Stop It, and founder of the movement against libel tourism, praised the United States Senate for passing the Securing the Protection of our Enduring and Established Constitutional Heritage Act, HR 2765 (as amended by the Leahy-Sessions SPEECH Act) by unanimous consent yesterday. The bill was introduced by the Chairman of the Judiciary Committee Senator Patrick Leahy (D-Vermont) and Ranking Member Senator Jeff Session (R-Alabama). The legislation is cosponsored by Senator Arlen Specter (D-Pennsylvania), Senator Chuck Schumer (D-New York) and Senator Joe Lieberman (I-Connecticut).
At the vote, Senator Leahy noted: "I would like to recognize Dr. Rachel Ehrenfeld, Director of the American Center for Democracy, who herself has been the victim of a libel suit in the United Kingdom, and has been a tremendous advocate for Congressional action in this area."
"I am delighted that the Senate passed the SPEECH Act, which protects all Americans in the uninhibited, robust, and wide-open manner that the First Amendment was designed to guarantee," said Dr. Ehrenfeld. "I hope that the House will act decisively and with speed to approve this bill."
The SPEECH Act will uphold First Amendment protections for American free expression by guarding American authors and publishers from the enforcement of frivolous foreign libel suits, filed in countries that do not have our strong free speech protections. Such lawsuits are often used by "libel-tourists" in an effort to suppress the rights of American scholars, writers, and journalists to speak, write and publish freely in print and on the Internet.
The Act grants "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," and provides for legal fees. These measures will help diminish the severe chilling effect such suits have already had on journalists, researchers, the general media, particularly on matters of national security and public safety.
"The freedoms of speech and the press are cornerstones of our democracy," said Senator Leahy. "They enable vigorous debate, and an exchange of ideas that shapes our political process. Foreign libel lawsuits are undermining this informational exchange. While we cannot legislate changes to foreign law that are chilling protected speech in our country, we can ensure that our courts do not become a tool to uphold foreign libel judgments that undermine American First Amendment or due process rights. The SPEECH Act is an important step in putting a stop to this chilling of American free speech."
"I am very pleased that this important bipartisan legislation has passed the Senate unanimously. This bill will allow American writers to clear their names when they are improperly found by a foreign court to have committed libel," said Senator Sessions. "It will also bar enforcement in this country of foreign libel judgments that are contrary to our Constitution and laws. In short, this bill is a needed first step to ensure that weak free-speech protections and abusive legal practices in foreign countries do not prevent Americans from fully exercising their constitutional right to speak and debate freely."
Based on New York State's "Libel Terrorism Protection Act" (also known as "Rachel's Law"), the SPEECH Act marks the culmination of a national campaign spearheaded by Dr. Ehrenfeld following her own experiences with libel tourism.
In May 2008, Reps. Peter King (R-NY) and Steve Cohen (D-TN), proposed similar bills in the House, and Senators Arlen Specter (D-PA) Joseph Lieberman (CT), and Charles Schumer (D-NY) sponsored the Free Speech Protection Act in the Senate. Dr. Ehrenfeld thanks their initiative and support, which have led to the introduction of the SPEECH Act. In particular, Dr. Ehrefeld also extends her thanks to former U.S. Attorney General, Judge Michael B. Mukasey, former Director of CIA James Woolsey, and attorneys Floyd Abrams and Daniel J. Kornstein for their unflagging efforts in support of this legislation.
The editorial pages of The New York Times, The Washington Post, New York Post, Los Angeles Times and Miami Herald, as well as organizations such as the Association of American Publishers, American Library Association, the American Society of News Editors, the Independent Book Publishers Association, the American Civil Liberties Union and 9/11 Families for a Secure America, among others, have supported Dr. Ehrenfeld's fight for free speech.
The American Center for Democracy (www.acdemocracy.org) is a non-profit organization under Section 501(c)(3).
Yet, one can’t find enough comfort in that. A recent court decision says that those who wear unearned medals of valor are expressing free speech, contrary to the US Stolen Valor law that says it is punishable.
My good friend Doug Sterner who along with his wife Pam, again dougties of the first order, single-handedly as citizens succeeded in the Congressional enactment of their drafted Stolen Valor Act. Doug, always optimistic, tells me that this court decision may actually be a good thing. It has increased the visibility of the DOD and Congress neglected deficiency that there is not a searchable repository of earned medals of valor. Further, the prospect of the law’s status reaching the Supreme Court is good, and a good thing, with this judge’s entire 10th District panel of judges yet to weigh in if the Obama administration appeals, other federal judicial districts (particularly the 9th) yet to decide a pending case, and other judicial districts upholding the law.
Libertarian law prof Eugene Volkh writes that he is “unpersuaded” by the decision against the Stolen Valor Act. “Knowingly (or recklessly) false statements of fact”, he says, are not protected by the first amendment. In short, fraud is fraud. There’s no question of “is” there. Furthermore, there is in almost all cases the intent to benefit from the fraud, either financially in government and employment benefits, or “in kind” via perks (yes, even the free beer to a “hero”), or in advancing a political position. Though in many cases there may not be a demonstrable or material harm provable against another, aside from generally devaluing the true heroes, this fraud is not free speech but an abuse of the intent of Congress in authorizing medals of valor, in passing the Stolen Valor Act, and -- most relevant -- an illegitimate abuse of free speech rather than protected free expression.
Again, so it will be for the courts to decide.
The struggles over legitimate free speech and the illegitimate will ever continue as long as there’s doughty patriots.
