Floyd Abrams, arguably the nation’s most accomplished First Amendment lawyer, has an interesting op-ed in today’s WSJ on the potential impact of British libel law on free speech in the United States.
Today, there are sharp distinctions between U.S. and English law. One difference is that under the First Amendment we provide far more protection for speech that is claimed to be libelous.
There is no need for democratic nations to agree upon such matters. The values of free speech and individual reputation are both significant, and it is not surprising that different nations would place different emphasis on each.
But a serious problem has surfaced. In recent years, English libel law has come to have a disturbing impact on the right of Americans to speak out.
England has become a choice venue for libel plaintiffs from around the world, including those who seek to intimidate critics whose works would be protected in the U.S. but might not in that country. That English libel law has increasingly been used to stifle speech about the subject of international terrorism raises the stakes still more.
The solution, according to Abrams, is legislation that would enable individuals to obtain declaratory judgments in U.S. courts that their works are protected under American law under the First Amendment, so as to prevent the enforcement of foreign libel judgments in U.S. courts. He concludes:
England should be free to choose its own libel law. But so should we. It is not too much to ask that American law should protect our people when they speak in precisely the “uninhibited, robust and wide-open” manner that the First Amendment was drafted to protect.