When Congress passed the SPEECH Act two years ago, its primary goal was to protect speakers from hefty defamation verdicts rendered by libel havens, countries whose laws are less speech-protective than those in the United States. The statute essentially prohibits U.S. courts from enforcing foreign defamation judgments unless the applicable law provides speech protections comparable to those in the U.S., or the same judgment would have resulted under U.S. law. One recent case suggests that the SPEECH Act may inadvertently be splitting the defamation atom in two, allowing plaintiffs to rehabilitate their reputations while simultaneously shielding defendants from monetary loss. This phenomenon may sound familiar to Conflicts aficionados, as it seems to replicate the creation of so-called divisible divorce in the 1940s.
A case now on appeal in the Fifth Circuit, involving New Orleans corruption, Canadian libel law, and the same-sex proprietors of a Nova Scotia fishing resort, illustrates what may become the norm when electronic speech spans national borders.
In a 2010 story about alleged political corruption in Jefferson Parish, Louisiana, the New Orleans Times-Picayune reported that a parish official co-owned a vacation resort in Nova Scotia. The paper later retracted the statement and stopped hosting a blog that had also discussed the connection between the disgraced official and the Nova Scotia couple that ran the resort. The blogger found a new host and continued to post allegations that the couple was laundering proceeds of the New Orleans corruption, along with embarrassing photoshopped images of the two and several homophobic slurs against them. The couple sued the blogger in Canada for defamation (and several other torts). The blogger did not appear, the allegations in the complaint were taken as true, and the court awarded the men $425,000. The men sought to enforce the judgment in Mississippi state court, the case was removed to the local federal district court, and the court refused to enforce the judgment, citing the SPEECH Act. The federal court concluded that its Canadian counterpart did not specifically find that the blogger’s statements were false, as required under U.S. law. Therefore, the Canadian court provided less speech protection than a U.S. court would have, and the judgment could not be enforced.
The result may have been an unintentionally ideal compromise. Together the U.S. and Canadian courts essentially credited the moral victory to the ostensibly defamed lodge owners and the financial victory to the blogger. While this might not be a palatable outcome for most torts, there is some research suggesting that defamation plaintiffs, in particular, are as concerned with public acknowledgment that they have been falsely impugned as they are with collecting money. In fact, the Nova Scotia plaintiffs were reported to have said “this was never about the money,” echoing Frederick Pollock’s famous observation that “the law went wrong from the start in making the damage and not the insult the cause of the action.” Further, while speech has grown increasingly global, libel law remains stubbornly divided between defendant-protective doctrines in the U.S. and more plaintiff-friendly doctrines elsewhere. So it may be time for a mechanism that strikes something of a balance.
In fact, it is not uncommon that recognition and enforcement principles are deployed to accommodate cultural or generational divides reflected in conflicting laws. In the 1940s, the Supreme Court held in a series of cases that states had to recognize quickie divorces awarded by sister states that had welcomed fleeing spouses, even when the absent spouse was clinging to the marriage. Several years later, however, the Court held that while sister states had to honor adjudications of marital status, they did not have to honor out-of-state judgments purporting to dictate the financial status of the absent spouse. Thus was born the “divisible divorce,” with one state handling the status adjudication and another handling the financial adjudication. Perhaps the SPEECH Act has established divisible defamation for the age of global speech.