Mini-SPEECH Acts

Image by Markus Winkler from Pixabay

In the United States, it is common for states to enact statutes that mirror those already in operation at the federal level. These state statutes are sometimes described as “mini” versions of a particular federal enactment. A quick internet search turned up references to mini-FTC Acts, mini-WARN Acts, mini-Brooks Acts, and mini-Randolph-Sheppard Acts, among others.

In 2010, Congress enacted a statute—the Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act—that establishes a uniform federal standard for determining whether a foreign judgment for libel or defamation should be enforced in the United States. At least ten states have enacted mini-SPEECH Acts that parallel and supplement this federal legislation. In this post, I first review the key provisions of the federal SPEECH Act. I then examine how the mini-SPEECH Acts operate.

The SPEECH Act

The SPEECH Act sought to address the perceived problem of libel tourism—that is, the decision by plaintiffs in defamation suits to sue in foreign jurisdictions with minimal ties to the case but with plaintiff-friendly substantive laws. The Act provides that a federal or state court may not give effect to a foreign defamation judgment until it determines that (1) the foreign defamation law provides at least as much protection for freedom of speech and press as does U.S. law, or (2) the defendant would have been liable for defamation if the suit had been brought in the United States.  The party seeking recognition or enforcement bears the burden of proving that one of these two conditions has been satisfied.

This party also bears the burden of showing 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.”  To enforce a foreign defamation judgment in a U.S. court, therefore, a judgment creditor must essentially relitigate the merits of the underlying judgment—and the issue of personal jurisdiction—in a U.S. court under U.S. legal standards.

A U.S. person has the right to oppose the recognition or enforcement of the foreign judgment even if that person appeared in the foreign proceeding. A U.S. person who successfully opposes the recognition of a foreign libel judgment is entitled to reasonable attorney’s fees. Finally, the Act provides that a U.S. person may seek a declaratory judgment that a foreign defamation judgment is not enforceable. This last provision permits a U.S. person to have a foreign defamation judgment declared invalid even if the foreign judgment creditor never moves to enforce it.

The Mini-SPEECH Acts

Each of the mini-SPEECH acts provides that foreign judgments for libel or defamation are unenforceable unless the law applied by the rendering court provides at least as much protection for freedom of speech and the press as the federal and state constitutions. These provisions generally track the first part of the enforcement test set forth in the SPEECH Act. All of these provisions omit the second part of the enforcement test, which permits enforcement if the judgment-creditor would have been liable for defamation if the suit had been brought in the United States.

While the federal statute provides for nationwide service of process, it is silent on the issue of personal jurisdiction. Virtually all of the mini-SPEECH Acts have attempted to fill this hole by specifying when a judgment-debtor may obtain personal jurisdiction over a judgment-creditor in a declaratory judgment action.  The statutes enacted by individual states are discussed below.

New York

The New York mini-SPEECH Act states a judge may—but is not required to—refuse to enforce a foreign defamation judgment if the law applied by the rendering court does not provide “at least as much protection for freedom of speech and press in that case as would be provided by both the United States and New York constitutions.” It further provides that the party seeking recognition of a foreign defamation judgment bears the burden of proving that the relevant foreign law meets this standard.

The New York Act also states that New York courts “shall have personal jurisdiction over any person who obtains a judgment in a defamation proceeding outside the United States against any person who is a resident of New York” or is amenable to jurisdiction in New York in a declaratory judgment action so long as (1) the publication was published in New York, and (2) the judgment-debtor has assets in New York or may have to take action in New York to comply with the foreign judgment. The purpose of this provision is to facilitate the exercise of personal jurisdiction over foreign judgment-creditors by New York courts in declaratory judgment actions seeking to have the judgment declared unenforceable.

California

The California legislature has enacted a law which states that a California state court “shall not recognize a foreign-country judgment for defamation if that judgment is not recognizable” under the federal SPEECH Act. In contrast to New York, the California law does not announce an independent standard for non-enforcement. It merely incorporates the federal standard by reference.

A separate California statute states that a judgment-debtor can obtain declaratory relief under California state law if he (1) is a resident of California or is otherwise amenable to jurisdiction there, (2) has assets in California or may have to take actions in California to comply with the foreign judgment, and (3) the publication at issue was published in California. This provision is facially different from the ones in New York because the criteria address the eligibility of the judgment-debtor to declaratory relief rather than the ability of the courts to assert personal jurisdiction over the judgment-creditor. The statute goes on to provide, however, that a California court shall have “personal jurisdiction over the person or entity who obtained the foreign-country defamation judgment,” which suggests that the eligibility criteria laid down in the state do double duty as jurisdictional rules.

Florida

The Florida mini-SPEECH Act states that a Florida court may decline to enforce a foreign defamation judgment when the law applied does not provide as much protection for “freedom of speech and press in that case as would be provided by the United States Constitution and the [Florida] State Constitution.”

The Act also states that Florida shall have personal jurisdiction over a foreign judgment-creditor in a declaratory judgment action if the judgment-debtor is (1) a resident of Florida, (2) is amenable to jurisdiction in Florida, (3) has assets in Florida, or (4) may have to take some action in Florida to comply with the judgment. In contrast to the conjunctive tests utilized in New York and California—which list multiple criteria that must be satisfied to obtain personal jurisdiction—the Florida law states a disjunctive test in which any one of the contacts listed above will suffice.

This approach strikes me as constitutionally problematic. Can a Florida state court really assert personal jurisdiction over a French defendant holding a judgment issued by a French court based solely on the fact that the judgment-debtor is a Florida resident? Can a Florida state court really assert personal jurisdiction over a Japanese defendant based solely on the fact that the judgment-debtor is a Georgia resident who happens to have assets in Florida? I would submit that the answer to each of these questions is no. To date, however, the constitutionality of this law has never been tested; the statute appears never to have been applied by a Florida court.

Connecticut, Louisiana, Maryland, Oklahoma, and Tennessee have all enacted mini-SPEECH Acts whose jurisdictional provisions mirror Florida’s and which therefore raise similar constitutional issues. Like the Florida statute, none of these statutes appear to have ever been applied in an actual dispute. Consequently, their constitutionality has never been adjudicated by any court.

Idaho

The mini-SPEECH Act in Idaho is arguably the most elaborate of all the state enactments. It states that a foreign defamation judgment shall not be given effect in Idaho if the “defamation law applied in the adjudication by the foreign court failed to provide at least as much protection for freedom of speech and press in that case as would be provided by the constitutions of this state and the United States.” And it permits the Idaho state courts to exercise personal jurisdiction in a declaratory judgment action against the judgment-creditor on the same grounds as the ones listed in the Florida statute.

The Idaho statute, however, goes a step further. It seeks to prevent foreign defamation judgments from being rendered in the first place by allowing defendants in foreign defamation suits to obtain an anti-suit injunction from an Idaho court to shut down the foreign proceedings. The statute provides that an injunction may issue if the party seeking it can show that the foreign defamation action would “[f]rustrate a policy of the state, the guarantee of due process, and the protection of freedom of speech . . . [b]e vexatious or oppressive; or . . . [p]rejudice other equitable considerations.” It further provides that the Idaho state courts shall have personal jurisdiction over any person who institutes a foreign defamation action for purposes of issuing an anti-suit injunction so long as the defendant in that foreign action is (1) a resident of Idaho; (2) a person or entity amenable to jurisdiction in Idaho; (3)  a person who has assets in Idaho; or (4) a person who may have to take steps in Idaho to comply with the judgment.

As a matter of Idaho law, therefore, the mere act of suing a person with assets in Idaho for defamation in a foreign country is apparently enough to subject the filing party to personal jurisdiction in Idaho for purposes of issuing an anti-suit injunction. The Idaho statute further states that “[n]o Idaho court shall sustain a dilatory exception of ‘lis pendens’ asserted in a declaratory or injunctive proceeding under this section that was filed in an Idaho court subsequent to the foreign defamation action.” This language makes clear that the Idaho courts are not expected to defer to the court first seized with a matter even if involves the same parties and the same cause of action.

This statute notwithstanding, it seems unlikely that a person named in a foreign defamation proceeding would incur the costs of seeking an anti-suit injunction in Idaho for two reasons. First, such an order is likely to be ignored by a foreign court in the (likely) event that it concludes that the Idaho court lacked personal jurisdiction over the defendant. Second, if the potential judgment-debtor waits until the judgment creditor seeks to enforce the judgment in the United States, it can invoke the fee-shifting provision in the federal SPEECH Act to require the judgment-creditor to pay its attorneys’ fees. There is no fee-shifting provision available to a judgment-debtor who preemptively seeks to obtain an anti-suit injunction in Idaho.

Some Thoughts on the Mini-SPEECH Acts

As a matter of substance, the mini-SPEECH Acts are largely superfluous. Their core provisions track a federal rule that would—by virtue of the Supremacy Clause—preempt the state rule in the event of a conflict. A critic might argue that these statutes are more symbolic than practically significant.

There is, however, a more charitable reading of these acts. The substantive provisions in these statutes ensure that foreign defamation judgments will subject to exacting scrutiny if the federal SPEECH Act were someday to be repealed. If a state constitution is deemed to provide more protection than the federal constitution, moreover, then a state act will confer protections beyond those accorded by the federal SPEECH Act. The fact that mini-SPEECH Acts are written into state statutes also increases the likelihood that litigants will become aware of these special rules relating to enforcement of foreign defamation judgments. Since there are no federal statutes on foreign country judgments other than the SPEECH Act, it is easy to imagine a scenario where litigants might overlook these rules if they were only written into federal law.

Viewed through the lens of procedure and personal jurisdiction, the mini-SPEECH Acts present a host of interesting issues. The federal act, as noted above, is silent on the issue of personal jurisdiction. It is therefore entirely reasonable that the states would take the initiative to lay down rules in this area. A survey of the rules contained in these acts, however, suggests that some of the jurisdictional assertions are exorbitant. Indeed, the jurisdictional provisions laws in Connecticut, Florida, Idaho, Louisiana, Maryland, Oklahoma, and Tennessee call to mind Article 14 of the French Civil Code, which infamously allows jurisdiction over a defendant anywhere based on the French nationality of the plaintiff. These constitutional issues have, however, attracted little attention from lawyers or scholars to date because they are entirely academic. So far as I can determine, nobody has ever relied on any of these statutes to assert personal jurisdiction over a foreign judgment-creditor in a declaratory judgment action involving a defamation judgment. Until a litigant invokes one of these jurisdictional provisions in an actual case, these provisions are likely to be little more than a footnote in treatises devoted to the enforcement of foreign judgments or quirky rules of personal jurisdiction.

Finally, it is important to say a brief word about the anti-suit injunction provision in Idaho’s mini-SPEECH Act. It is one thing for a state to direct its courts not to enforce a foreign judgment. It is quite another for a state to direct its courts to issue an anti-suit injunction before a judgment is ever reached in the foreign proceeding. While it has been said that extremism in the pursuit of liberty is no vice, one cannot help but wonder whether an anti-suit injunction statute is strictly necessary to protect the rights vouchsafed by the First Amendment. The Idaho invalidating statute and the Idaho provision allowing for declaratory judgments, taken together, are almost certainly sufficient to achieve the desired end. Nevertheless, if you happen to be a wealthy U.S. national who is desperate to avoid having any foreign defamation judgment ever entered against you, it may be time to open up a bank account in Idaho (just in case) to facilitate an anti-suit injunction action at some later date.