SPEECH Act

• 1. Introduction

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  The SPEECH Act is a 2010 federal law with a name that doubles as a declaration: Securing the Protection of our Enduring and Established Constitutional Heritage. At its core, it answers a single threatening question. What happens when an American writer is sued for defamation in a foreign court, wins no protection from the First Amendment, and then finds that judgment chasing them home? The SPEECH Act says: that foreign judgment stops at the border. It cannot be recognized or enforced in a United States court unless the foreign country's laws offer at least as much free speech protection as the First Amendment does, or unless the defendant would have been found liable under American law anyway. The law was signed by President Barack Obama and passed unanimously through both chambers of the 111th Congress. But the story of why it exists begins not in Washington, but in a legal dispute that crossed the Atlantic and changed the way Americans thought about a practice called libel tourism. The case that sparked the legislation involved a researcher, a Saudi businessman, and a book about terrorism financing, and the law that eventually emerged has been both praised and seriously criticized for how far it actually goes.

• 2. The Rachel Ehrenfeld Case

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  Dr. Rachel Ehrenfeld wrote a book in 2003 titled Funding Evil. The book examined the financial networks behind terrorism and named Khalid bin Mahfouz, a Saudi businessman, as a figure connected to those networks. Bin Mahfouz did not sue Ehrenfeld in the United States. He sued her in a British court, where defamation law at the time placed the burden of proof on the defendant rather than the plaintiff, the reverse of the American standard. Ehrenfeld lost that British case. The prospect that a British judgment could then be enforced against her in the United States alarmed American journalists, authors, and civil liberties organizations. The practice of choosing a foreign jurisdiction specifically because it offers more plaintiff-friendly defamation rules became known as libel tourism, and Ehrenfeld's situation became its defining example. Her legal battle drew the attention of lawmakers who saw a structural threat to investigative reporting on matters of public interest. Congress responded first with proposed bills in 2008 and 2009 under the name the Free Speech Protection Act, introduced in the 110th and 111th Congresses, but neither of those bills was enacted. The SPEECH Act that finally became law was the successor to those failed attempts.

• 3. What the Law Actually Does

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  Section 181 is the provision the SPEECH Act inserted into title 28 of the United States Code, under the heading "Foreign Judgments." The legislation states that a foreign defamation ruling cannot be recognized or enforced on American soil unless two tests are met. First, the foreign jurisdiction must offer free speech protections at least equivalent to the First Amendment. Second, the court's handling of the case must have respected the due process guarantees of the United States Constitution to the same degree a domestic court would. The Act also extends protection to online platforms. Claims that would be dismissed in the United States under section 230 of the Communications Act, the statute that shields internet hosts from liability for third-party content, remain blocked unless their outcome would have matched what an American court would have reached. A defendant who appeared in a foreign court to contest the case does not lose the right to fight enforcement in the United States. And any American subjected to a foreign defamation judgment can file for a declaratory ruling that the overseas judgment is, in the Act's own language, "repugnant to the Constitution or laws of the United States." The American Library Association, the Association of American Publishers, the Reporters Committee for Freedom of the Press, and the American Civil Liberties Union all endorsed the law. The legislation also includes a fee-shifting provision in section 4105 allowing for the collection of "reasonable" attorneys' fees, though it stops short of authorizing damages for the defendant.

• 4. Early Court Tests

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  Pontigon v. Lord, heard in Missouri courts in April 2011, was the first case to directly address how the SPEECH Act applied. It did not produce a landmark ruling, but it established that American courts were willing to engage with the statute. The first federal judgment to reference the Act came in InvestorsHub.com v. Mina Mar Group, though that dispute never produced a definitive decision because the parties settled out of court. The case that produced the first ruling at the appellate level was Trout Point Lodge v. Doug K. Handshoe. A Nova Scotia court had issued a defamation judgment against Handshoe. The United States Court of Appeals affirmed a lower court's finding that the Nova Scotia judgment was unrecognizable and unenforceable in the United States under the SPEECH Act. In 2013, the trial court went further and awarded Handshoe $48,000 in legal fees under the fee-shifting provision. That figure is the only specific dollar amount attached to the Act's earliest applications. The Handshoe litigation did not end there. His later attempts in 2014 and 2015 to use the SPEECH Act to block a Canadian copyright infringement judgment against him were both rejected and remanded. A judge explained in one ruling that copyright in photographic images is not the same as "false or damaging forms of speech," and the SPEECH Act therefore did not apply.

• 5. Critics and Limitations

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  Nicole Manzo, writing in the Roger Williams Law Review, argued that the SPEECH Act "fails to differentiate between legitimate forum selection and illegitimate forum shopping." Her critique went further: the exceptions to non-enforcement are, in her view, "illusory" and leave courts without enough guidance on how to weigh free speech protections in any given case. A separate article published in the Journal of International and Comparative Law of the Chicago-Kent College of Law examined how the district court and the United States Court of Appeals for the Fifth Circuit applied the Act in the Trout Point Lodge case. That article concluded the SPEECH Act is "overly broad" in its "universal applicability in defamation cases" and its failure to distinguish between plaintiffs who chose a foreign court in good faith and those engaged in deliberate forum shopping. The article called this a "fundamental failing" and argued the Act "should be amended." Congress had itself recognized a gap in the original legislation. The Free Speech Protection Act of 2009, which did not pass, had included stronger remedies, among them the ability for a defendant to recover actual damages from a foreign plaintiff who used a foreign judgment to chill American speech. The enacted SPEECH Act contains no such damages provision. Section 4104 creates a new cause of action, and section 4105 allows for attorney fee recovery, but the absence of damages was seen as a significant retreat from what earlier proposed legislation had envisioned.

• 6. The EFF Victory

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  In 2017, the Electronic Frontier Foundation used the SPEECH Act to defeat a defamation claim that had originated in South Australia. The dispute began when the EFF criticized a patent claim by a company called Global Equity, describing Global Equity as "a classic patent troll." Global Equity responded by filing a defamation action in a South Australian court, which issued an injunction against the EFF. American courts found that blocking the EFF's speech on the basis of that Australian ruling violated First Amendment protections, and the SPEECH Act provided the legal mechanism to say so. The case, EFF v. Global Equity, became a clear example of the law functioning as its drafters intended: an advocacy organization's public criticism of a legal strategy could not be silenced through a foreign defamation claim. The ruling also illustrated which defendants the Act was built to protect. Investigative journalists, civil liberties groups, and online publishers all face the same structural vulnerability that motivated the law's creation. Whether the SPEECH Act's protections are broad enough, or whether its gaps leave too many plaintiffs without recourse against genuine defamation, remains an open question that the law's critics continue to press.