On Saturday, I spent a rejuvenating morning serving as a judge for the semi-final round of a moot-court competition hosted by American University’s Washington College of Law.
My service to the Burton D. Wechsler First Amendment Moot Court Competition stirred me in three ways:
1. It made me feel 20 years younger, when I nervously stood as a law student waiting to be grilled by “judges” at the same school;
2. It enabled me to step out of the role of spectator (I have reported on oral arguments for two decades) and participate in the enterprise; and
3. As a husband — and father of a teen and a tween — it was refreshing to have people listen to me and answer my questions.
It also didn’t hurt that the fact pattern and issue were right up my alley.
The head of research and development at a major high-tech company was suing for libel a blogger who had accused him online of running a Mumbaian sweatshop where child laborers built computer components.
The issue before the moot court was whether the company executive qualified as a “public figure” or “private person” under the Supreme Court’s First Amendment jurisprudence, a critical distinction that largely determines who wins the case.
Public figures, to prove libel, have the heavy burden of showing that the reporter wrote an erroneous story either knowing it was false or with a reckless disregard for the truth. Private individuals need only show that the journalist was negligent in reporting a story that was untrue.
The three-judge panel on which I served — as “chief” no less — ruled for the reporter. Imagine that.
Responding to fear of foreign libel lawsuits, the House of Representatives passed a bill Saturday on “libel tourism.” H.R. 6146 aims to prevent American courts from enforcing some foreign libel judgments, according to an editorial in the New York Times.
If the bill is signed into law, judgments obtained in foreign countries with less free speech protections cannot be enforced in the U.S. For instance, in America, the plaintiff has the burden of proof in a libel suit; in Britain, that burden is on the defendant, making it much easier to obtain a libel judgment.
As an example of the chilling effect of “libel tourism,” the editorial tells the story of a lawsuit brought against Dr. Rachel Ehrenfeld, an American author and director of the American Center for Democracy. Saudi Arabian businessman Khalid bin Mahfouz sued Ehrenfeld in Britain for claims in her book, “Funding Evil: How Terrorism Is Financed and How to Stop It,” that Mahfouz was financing terrorism. The businessman won a judgment in Britain’s court, and can now ask an American court to enforce the judgment.
New York responded by enacting “Rachel’s Law,” which made foreign libel judgments unenforceable in the state’s courts. Now, the Senate and president must decide whether to provide authors with federal protection.
What do you think? Should American courts be prevented from enforcing defamation judgments obtained in countries with weaker free speech protections?