On 10 August 2010 President Obama has signed the so-called “SPEECH Act” into law. This prohibits federal courts from recognizing or enforcing foreign libel judgments in the U.S. that are not “First Amendment compliant”. In addition foreign defamation judgments are unenforceable against the providers of interactive computers services, such as the hosts message boards and blogs, if inconsistent with Section 230 of the Communications Decency Act (which protects against liability for content provided by others). 28 USC § 1402(c). The text of the statute appears here. This wholly unnecessary piece of legislation has – predictably – been given a universal and uncritical welcome by the media and by most bloggers (see, for example, the usually excellent Unruly of Law).
Northern Ireland media lawyer Paul Tweed is one of the few to have put the opposite point of view – on his blog and on comments on a number of US sites:
“The signing of the Speech Act by President Obama is the final endorsement of what has been the most effective and concentrated lobbying campaign since that orchestrated by the tobacco industry some years ago. The priority afforded to this US “Libel Tourism” legislation is as inappropriate and unnecessary as it is bewildering. As a UK/Irish media lawyer of more than 30 years standing, I have never once sought to enforce a UK libel judgment in the US, and I am still waiting to be advised of one single example of such an attempt by any other practitioner”.
There are two points. First, the case law had already established that foreign libel judgments would not be enforced in the US (see, for example, Matusevitch v Telnikoff) – as a result, as Paul Tweed says, no one ever even tries to enforce such awards in the US. Secondly and more importantly, why shouldn’t US citizens who publish defamatory material in a foreign country be liable under that country’s laws? There are, of course, arguments about trivial or incidental foreign publication but why should a US citizen or company who chooses to publish a book or article in England not be subject to its laws, like everyone else?
In Frederick K.C. Price v. John Stossel et al. (Case No. 09-55087) the U.S. Circuit Court of Appeals for the Ninth Circuit allowed an appeal brought by a preacher against the dismissal of a defamation claim against the ABC newsmagazine 20/20 and then correspondent John Stossel. The claim concerns the broadcast of part of a sermon in which he said “I live in a 25-room mansion. I have my own $6 million yacht. I have my own private jet, and I have my own helicopter.” In fact he was preaching about a hypothetical individual, who though financially healthy, was spiritually unfulfilled. The Court of Appeals said that
“Journalists and publishers risk a defamation action when they put words in a public figure’s mouth…The issue in this case is whether there are similar risks when a network television program broadcasts a statement actually made by a public figure, but presents the statement in a misleading context, thereby changing the viewer’s understanding of the speaker’s words.”
In Clemens v McNamee a former Major League Baseball pitcher failed to revive a defamation suit against his former trainer Brian McNamee, who alleged he injected had injected the plaintiff with performance-enhancing drugs. The Fifth U.S. Circuit Court of Appeals panel in New Orleans rendered a 2-1 opinion today upholding U.S. District Judge Keith Ellison’s ruling that the lower court had no jurisdiction because McNamee made the statements about Clemens’s drug use to a sports reporter in New York, not Texas.
In Peel v Lee the Fifth Division of the Illinois Appellate Court ruled that it was proper for a Cook County trial court to throw out a 2006 defamation lawsuit by a former Glenview Park District skating coach against the district and three people he claimed taunted him. The Court agreed with the lower court’s 2009 finding that Richard Peal deliberately deleted thousands of files from his personal computer despite a court order that all computer documents be preserved.
In Cara Muhlhahn v. Andrew Goldman & New York Media LLC (Case No. 10102846), a Manhattan midwife is seeking $1 million in damages in a defamation suit filed in the Supreme Court of New York against New York magazine and a journalist over a 2009 article entitled “Extreme Birth.” The case is discussed on the Unruly of Law blog.
The Avvo blog has an article under the headline “Why suing Yelp for Defamation is a bad idea” explaining the problems which arise in suing customer review sites for defamation.
The Volokh Conspiracy blog discusses the case of Boardley v. U.S. Department of the Interior in which the U.S. Court of Appeals for the D.C. Circuit struck down the National Park Service’s permitting regulations for expressive activities in national parks on First Amendment grounds. It also has a post on the “outdoor burning of Korans” – unlawful as a result of the city fire code.
Julie Hilden has written two interesting articles on defamation cases involving facebook. The first, “Defamation on Facebook: Why a New York Court Dismissed a Recent Suit” deals with the recent New York case of Finkel v Dauber. The second, “Future Conflict Over Defamation on Facebook: How It Might Differ from Traditional Defamation Litigation” explains why the author believes that future Facebook defamation cases will differ importantly from defamation cases that take issue with statements that are made in the print and/or online media.
Samantha Barbas has published The Death of the Public Disclosure Tort: A Historical Perspective in the Yale Journal of Law and Humanities ((2010) 22 Yale Journal of Law & the Humanities 171) discussing the death of the “disclosure of private facts tort” in the US. She points out that this is because courts generally consider virtually everything that appears in the news media to be newsworthy. The article considers how this situation has come about. The abstract says
This article traces the “death” of the right to privacy against the press to two broad cultural shifts in the period between 1920 and 1940. One was a cultural devaluation of privacy, in the sense of concealing one’s private self from public view. By the 1930s, a certain degree of public self-exposure was not only considered desirable but inevitable. The other change was an expansion of the definition of “the news” to encompass a wide variety of information, including private facts, and a reassessment of the significance of the news media to modern social life. Drawing on an emerging discourse theory of the news, one that saw the purpose of the news media as fostering public discussion and “making people talk,” courts affirmed the social value of media gossip, folding it into a broad new definition of newsworthiness that extended to the far reaches of popular publishing. These developments created the modern American culture of self-exposure, in which the media’s desire to reveal private lives is rivaled by our penchant for self-publicity.