[111th Congress Public Law 223]
[From the U.S. Government Printing Office]
[[Page 2479]]
SECURING THE PROTECTION OF OUR ENDURING AND ESTABLISHED CONSTITUTIONAL
HERITAGE ACT
[[Page 124 STAT. 2480]]
Public Law 111-223
111th Congress
An Act
To amend title 28, United States Code, to prohibit recognition and
enforcement of foreign defamation judgments and certain foreign
judgments against the providers of interactive computer
services. <<NOTE: Aug. 10, 2010 - [H.R. 2765]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, <<NOTE: Securing the
Protection of our Enduring and Established Constitutional Heritage
Act. Courts.>>
SECTION 1. <<NOTE: 28 USC 1 note.>> SHORT TITLE.
This Act may be cited as the ``Securing the Protection of our
Enduring and Established Constitutional Heritage Act'' or the ``SPEECH
Act''.
SEC. 2. <<NOTE: 28 USC 4101 note.>> FINDINGS.
Congress finds the following:
(1) The freedom of speech and the press is enshrined in the
first amendment to the Constitution, and is necessary to promote
the vigorous dialogue necessary to shape public policy in a
representative democracy.
(2) Some persons are obstructing the free expression rights
of United States authors and publishers, and in turn chilling
the first amendment to the Constitution of the United States
interest of the citizenry in receiving information on matters of
importance, by seeking out foreign jurisdictions that do not
provide the full extent of free-speech protections to authors
and publishers that are available in the United States, and
suing a United States author or publisher in that foreign
jurisdiction.
(3) These foreign defamation lawsuits not only suppress the
free speech rights of the defendants to the suit, but inhibit
other written speech that might otherwise have been written or
published but for the fear of a foreign lawsuit.
(4) The threat of the libel laws of some foreign countries
is so dramatic that the United Nations Human Rights Committee
examined the issue and indicated that in some instances the law
of libel has served to discourage critical media reporting on
matters of serious public interest, adversely affecting the
ability of scholars and journalists to publish their work. The
advent of the internet and the international distribution of
foreign media also create the danger that one country's unduly
restrictive libel law will affect freedom of expression
worldwide on matters of valid public interest.
(5) Governments and courts of foreign countries scattered
around the world have failed to curtail this practice of
permitting libel lawsuits against United States persons within
their
[[Page 124 STAT. 2481]]
courts, and foreign libel judgments inconsistent with United
States first amendment protections are increasingly common.
SEC. 3. RECOGNITION OF FOREIGN DEFAMATION JUDGMENTS.
(a) In General.--Part VI of title 28, United States Code, is amended
by adding at the end the following:
``CHAPTER 181--FOREIGN JUDGMENTS
``Sec.
``4101. Definitions.
``4102. Recognition of foreign defamation judgments.
``4103. Removal.
``4104. Declaratory judgments.
``4105. Attorney's fees.
``Sec. 4101. Definitions
``In this chapter:
``(1) Defamation.--The term `defamation' means any action or
other proceeding for defamation, libel, slander, or similar
claim alleging that forms of speech are false, have caused
damage to reputation or emotional distress, have presented any
person in a false light, or have resulted in criticism,
dishonor, or condemnation of any person.
``(2) Domestic court.--The term `domestic court' means a
Federal court or a court of any State.
``(3) Foreign court.--The term `foreign court' means a
court, administrative body, or other tribunal of a foreign
country.
``(4) Foreign judgment.--The term `foreign judgment' means a
final judgment rendered by a foreign court.
``(5) State.--The term `State' means each of the several
States, the District of Columbia, and any commonwealth,
territory, or possession of the United States.
``(6) United states person.--The term `United States person'
means--
``(A) a United States citizen;
``(B) an alien lawfully admitted for permanent
residence to the United States;
``(C) an alien lawfully residing in the United
States at the time that the speech that is the subject
of the foreign defamation action was researched,
prepared, or disseminated; or
``(D) a business entity incorporated in, or with its
primary location or place of operation in, the United
States.
``Sec. 4102. Recognition of foreign defamation judgments
``(a) First Amendment Considerations.--
``(1) In general.--Notwithstanding any other provision of
Federal or State law, a domestic court shall not recognize or
enforce a foreign judgment for defamation unless the domestic
court determines that--
``(A) the defamation law applied in the foreign
court's adjudication provided at least as much
protection for freedom of speech and press in that case
as would be provided by the first amendment to the
Constitution of the United States and by the
constitution and law of the State in which the domestic
court is located; or
[[Page 124 STAT. 2482]]
``(B) even if the defamation law applied in the
foreign court's adjudication did not provide as much
protection for freedom of speech and press as the first
amendment to the Constitution of the United States and
the constitution and law of the State, the party
opposing recognition or enforcement of that foreign
judgment would have been found liable for defamation by
a domestic court applying the first amendment to the
Constitution of the United States and the constitution
and law of the State in which the domestic court is
located.
``(2) Burden of establishing application of defamation
laws.--The party seeking recognition or enforcement of the
foreign judgment shall bear the burden of making the showings
required under subparagraph (A) or (B).
``(b) Jurisdictional Considerations.--
``(1) In general.--Notwithstanding any other provision of
Federal or State law, a domestic court shall not recognize or
enforce a foreign judgment for defamation unless the domestic
court determines that the exercise of personal jurisdiction by
the foreign court comported with the due process requirements
that are imposed on domestic courts by the Constitution of the
United States.
``(2) Burden of establishing exercise of jurisdiction.--The
party seeking recognition or enforcement of the foreign judgment
shall bear the burden of making the showing that the foreign
court's exercise of personal jurisdiction comported with the due
process requirements that are imposed on domestic courts by the
Constitution of the United States.
``(c) Judgment Against Provider of Interactive Computer Service.--
``(1) In general.--Notwithstanding any other provision of
Federal or State law, a domestic court shall not recognize or
enforce a foreign judgment for defamation against the provider
of an interactive computer service, as defined in section 230 of
the Communications Act of 1934 (47 U.S.C. 230) unless the
domestic court determines that the judgment would be consistent
with section 230 if the information that is the subject of such
judgment had been provided in the United States.
``(2) Burden of establishing consistency of judgment.--The
party seeking recognition or enforcement of the foreign judgment
shall bear the burden of establishing that the judgment is
consistent with section 230.
``(d) Appearances Not a Bar.--An appearance by a party in a foreign
court rendering a foreign judgment to which this section applies shall
not deprive such party of the right to oppose the recognition or
enforcement of the judgment under this section, or represent a waiver of
any jurisdictional claims.
``(e) Rule of Construction.--Nothing in this section shall be
construed to--
``(1) affect the enforceability of any foreign judgment
other than a foreign judgment for defamation; or
``(2) limit the applicability of section 230 of the
Communications Act of 1934 (47 U.S.C. 230) to causes of action
for defamation.
[[Page 124 STAT. 2483]]
``Sec. 4103. Removal
``In addition to removal allowed under section 1441, any action
brought in a State domestic court to enforce a foreign judgment for
defamation in which--
``(1) any plaintiff is a citizen of a State different from
any defendant;
``(2) any plaintiff is a foreign state or a citizen or
subject of a foreign state and any defendant is a citizen of a
State; or
``(3) any plaintiff is a citizen of a State and any
defendant is a foreign state or citizen or subject of a foreign
state,
may be removed by any defendant to the district court of the United
States for the district and division embracing the place where such
action is pending without regard to the amount in controversy between
the parties.
``Sec. 4104. Declaratory judgments
``(a) Cause of Action.--
``(1) In general.--Any United States person against whom a
foreign judgment is entered on the basis of the content of any
writing, utterance, or other speech by that person that has been
published, may bring an action in district court, under section
2201(a), for a declaration that the foreign judgment is
repugnant to the Constitution or laws of the United States. For
the purposes of this paragraph, a judgment is repugnant to the
Constitution or laws of the United States if it would not be
enforceable under section 4102 (a), (b), or (c).
``(2) Burden of establishing unenforceability of judgment.--
The party bringing an action under paragraph (1) shall bear the
burden of establishing that the foreign judgment would not be
enforceable under section 4102 (a), (b), or (c).
``(b) Nationwide Service of Process.--Where an action under this
section is brought in a district court of the United States, process may
be served in the judicial district where the case is brought or any
other judicial district of the United States where the defendant may be
found, resides, has an agent, or transacts business.
``Sec. 4105. Attorneys' fees
``In any action brought in a domestic court to enforce a foreign
judgment for defamation, including any such action removed from State
court to Federal court, the domestic court shall, absent exceptional
circumstances, allow the party opposing recognition or enforcement of
the judgment a reasonable attorney's fee if such party prevails in the
action on a ground specified in section 4102 (a), (b), or (c).''.
(b) Sense of Congress.--It is the Sense of the Congress that for the
purpose of pleading a cause of action for a declaratory judgment, a
foreign judgment for defamation or any similar offense as described
under chapter 181 of title 28, United States Code, (as added by this
Act) shall constitute a case of actual controversy under section 2201(a)
of title 28, United States Code.
[[Page 124 STAT. 2484]]
(c) Technical and Conforming Amendment.--The table of chapters for
part VI of title 28, United States Code, is amended by adding at the end
the following:
``181. Foreign judgments........................................4101.''.
Approved August 10, 2010.
LEGISLATIVE HISTORY--H.R. 2765:
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HOUSE REPORTS: No. 111-154 (Comm. on the Judiciary).
SENATE REPORTS: No. 111-224 (Comm. on the Judiciary).
CONGRESSIONAL RECORD:
Vol. 155 (2009):
June 15, considered and passed
House.
Vol. 156 (2010):
July 19, considered and passed
Senate, amended.
July 27, House concurred in Senate
amendment.
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