By Ian Allen
The United Kingdom is a hot destination for American travel. Generally, tourists intend to visit monuments like Westminster Abbey, Stonehenge, or even the Cliffs of Dover. However, the U.K. is also a hotspot for tourism of a different sort: libel lawsuit tourism.
The United States protects its citizens’ freedom of speech more than any other nation in the world. Americans can only face criminal charges for an incredibly limited portion of speech. The Supreme Court has ruled that only a handful of categories of speech lack constitutional protection, including true threats, fighting words, direct incitement of immediate lawless action, child pornography, and some obscenities. Hate speech, however, is not one of these unprotected categories.
Hate speech is expression that denigrates individuals based on membership in social groups such as certain races, genders, social classes, or sexual orientations. Through the Snyder v. Phelps decision in 2011, regarding a suit over the picketing of a dead soldier’s funeral by the Westboro Baptist Church, the Supreme Court, in a clear 8-1 decision, ruled that hate speech that deals with a matter of public concern is fully protected by the First Amendment. However, a central question remains: even when speech may cause psychological harm or inspire physical violence, why does the First Amendment protect it so stringently?
To answer this, legal scholars turn to a number of First Amendment theories regarding how to administer First Amendment protections. These theories outline schools of thought explaining why certain types of expression should or should not be protected. They come in lieu of actual guidelines from the founders of the United States, as no records of debate exist on the original meaning of the First Amendment. The theories are largely non-comprehensive, and not all of them address hate speech directly. Therefore, when it comes down to grasping the nation’s application of its most noteworthy constitutional right, understanding multiple theories is an absolute necessity.
The scholarly history of the theories can be traced back to 1644, when John Milton wrote about what would come to be known as the Marketplace of Ideas Theory. Proponents of this theory argue that the truth and value of expressed ideas should not be determined by a subjective censor. Instead, this theory presents free speech in an economic analogy: a free marketplace where truth is determined through a competition between ideas. This theory was brought into the canon of Supreme Court doctrines for the first time in 1919, when Justice Oliver Wendell Holmes, Jr. invoked it in his dissenting opinion in Abrams v. United States (1919). He disagreed with the majority ruling upholding the prosecution of an anarchist under the Espionage Act of 1917, stating that the truth of an argument determines an idea’s ability to be accepted in the “marketplace.”
Since then, courts have invoked the theory in multitudes of First Amendment decisions, but that does not certify the theory as infallible. As critics of the theory have pointed out, it is based on a number of false assumptions. Not everyone has equal access to the marketplace, and not all ideas have a fair shot at success. Truth is not always objective or discoverable. Truth does not guarantee an idea’s survival in the marketplace, as not all people are foundationally rational and able to accurately determine the truth of an idea when they read or hear it. Hate speech under this model would be wholly protected, as believers trust it would simply be killed off in the free marketplace. However, the shortcomings of reality do not allow this Darwinistic process to fully function. Therefore, it cannot act as the sole source of theory regarding free speech protection.
Later, in 1948, Alexander Meiklejohn, a philosopher and free speech advocate, asserted that the fundamental purpose of the First Amendment is to facilitate self-government. He believed in unabridged freedom of speech but did not believe that society itself should be kept from punishing specific types of speech. Simply put, he believed that political speech should be protected without limit, but that private speech does not deserve First Amendment protection. Free speech under the Meiklejohnian Theory exists to create informed voters and check the powers of the government. However, critics of Meiklejohn’s ideas insist that nonpolitical speech holds more value than this theory presents. As presented, it lacks protection for certain expressions through art or public discourse. In response to such criticism, Meiklejohn himself argued that his division of political and nonpolitical speech is not an impermeable barrier, as voters are often informed by a combination of expressions including literature and art. As it relates to the question at hand, hate speech would likely not be protected under a purely Meiklejohnian model, at least if it was nonpolitical. Meiklejohn himself would support private action against hate speech, as he prioritizes the protection of political speech. However, it is possible that Meiklejohn would go on to argue that certain types of private hate speech work in some way to inform voters and should, therefore, earn protection in cases where it acts in this role.
Checking Value Theory functions along the same lines as Meiklejohn’s self-government-centric idea of free speech protection. In 1977, Vincent Blasi outlined his idea of Checking Value Theory. Like Meiklejohn, Blasi focused on protecting political speech. However, where Meiklejohn argues that political speech is necessary for creating an informed voter base, Blasi argues that free speech is most important to preventing abuse of power by government officials. He explains in a 1985 article that courts must take a retrospective approach to applying First Amendment protections by considering periods in history during which intolerance of minority opinions and perspectives was the norm and dissent being stifled was more likely. Since the passage of the USA Patriot Act of 2001, Blasi’s writings have received renewed attention. This act’s section 251 permitted the NSA’s since-ended metadata collection program and even includes a gag order clause that prevents private parties from disclosing the existence of government-initiated records requests in relation to FBI investigations under the act.
Self Fulfillment Theory breaks off from these politically-grounded theories and, instead, focuses on the benefits that free speech brings to the individual. This theory, also known as the Liberty Model of free speech, considered freedom of speech not to be a means to an end, a method of facilitating effective self-governance, but an “end” in and unto itself. In other words, free speech isn’t meant to facilitate effective government, but effective government is meant to facilitate free speech. John Locke himself asserted expression to be a natural right of man, and the framers of the Constitution were heavily inspired by his work. Locke thought the government should exist to protect people’s freedom and dignity. Under this line of thinking, hate speech would be considered part of this right of expression. Even when it lacks value as political discourse and even when it does emotional harm to fellow citizens, hate speech would be considered to some as essential to individual expression. The freedom to think and construct opinions, the theory argues, is directly tied to freedom of expression, even if that expression is hateful.
Self Fulfillment Theory exists as an alternative to the Marketplace of Ideas model and in opposition to the value-based Meiklejohnian and Checking Value theories. However, it need not exist in contention with them. It simply emphasizes that despite the protection priority bestowed upon political speech by other models, there is some central value in allowing free speech for its own sake. If the government exists to facilitate and protect freedom, as Locke insisted it should, it should be kept from interfering with this natural right of man.
Finally, one of the most modern First Amendment theories, and one that deserves recognition, is Tolerance Theory. The foundations of this model were laid by John Stuart Mill, whose 1869 work On Liberty is important to modern work involving the Marketplace of Ideas model. However, Lee Bollinger outlined the theory itself in his 1989 book The Tolerant Society: Freedom of Speech and Extremist Speech in America. He argues in favor of what he calls “extreme” or “extremist” speech. He does this not by leaning on the proven-to-be-flawed mechanics of the Marketplace, but instead by presenting two arguments that go hand-in-hand. First, simply by protecting the most extreme types of speech, including hate speech, more moderate, mainstream types of political expression gain greater amounts of legal protection. By refusing to draw a line between hate speech and politically valuable speech, lawmakers and courts have no wiggle room with which they can put any type of limitation on political expression. In Collins v. Smith (1978), Nazi paraders in Scokie, IL were granted full First Amendment protection on the grounds that by protecting this decidedly hateful expression, it granted bettter protection for all types of political expression. Beyond legalities, Bollinger also argued that allowing for these extreme types of speech better enabled citizens to exercise and build tolerance for dissenting opinions in society. Better tolerance, he argues, facilittles a more stable and open society, which is a favorable end unto itself.
There are countless minutiae to First Amendment law. There are certain exceptions to its protection, and there are certain exceptions to those exceptions. Jurisprudence is an ever-evolving process when it comes to free speech, and there is no evidence that the application of the First Amendment has reached its final form, if such a hard-and-fast form even exists. However, as citizens of the most speech-protective nation on the planet, Americans should understand where their right to expression comes from, how it applies to them, and why it stretches so far to allow such distasteful and vile expressions as those of the American Nazi Party, the Ku Klux Klan, or even the Westboro Baptist Church. Even if one disagrees with the protection of hate speech based on its ability to incite indirect violence or inflict direct emotional harm, the judicial system’s line of reasoning in these cases is also key in protecting free speech in the broadest sense. Most importantly, if someone still disagrees with how hate speech is protected in America, it is their natural and constitutionally-protected right to do so.
Libel tourism is the act of pursuing civil suits for defamatory statements published in one country using the legal system of another. Plaintiffs aim to have their cases heard inside of countries with more favorable legal systems. The United Kingdom is one of the most popular destinations for this strange type of tourism.
Given that the English legal system is so similar to that of the United States, one may ask what the key difference is. Why exactly do wealthy plaintiffs go so far out of their way to hire incredibly specialized libel lawyers in London? What exactly distinguishes the two systems in libel lawsuits?
America’s legal system, at the federal, state, and local levels, is largely based around the English common law system. Since this system was already in place in the colonies under English rule, it was natural to simply adopt it as it existed and build onto it as necessary and in accordance with the still-developing judicial branch of the U.S..
A key feature of common law that carried over upon the reception of England’s system is stare decisis, or the concept of sticking to judicial precedent. Under this principle, all judges at every level in the system have the power to not only enforce laws, but to create them. When a legal question comes up that isn’t answered by a specific legislative statute, it falls to the judiciary to either make rulings that are in line with the records of past decisions or expand upon these past decisions to conform them to new circumstances.
In many ways, the two bodies of law have evolved convergently. Alterations of precedent have arrived in each system in similar cases at similar times. For example, America legalized same-sex marrige in 2015 after the Supreme Court decision in Obergefell v. Hodges. England legalized it only a few years prior in 2013.
Though American common law traces its roots directly to its English predecessor and the two have developed in very similar ways, certain aspects of common law have diverged over time. Each country’s handling of libel law underscores this separation.
The legal concept of libel originated in 17th century England and arrived in America with the first colonists. Originally, “seditious libel” was singled out, criminalizing the publication of criticisms of government and Church officials. Under this conception, libel is not contingent on the truth of published statements, but whether or not those statements hurt the dignity of their target.
Seditious libel has even been criminalized in the U.S. via statute: the 1798 Alien and Sedition Acts and the Sedition Act of 1918. Both acts focused on preventing dissent and criticism of the government and both have since died. The former reached its sunset clause without renewal, and the latter was repealed in 1920. However, libel as a legal concept does not only apply to public officials.
As it stands, libel has been relegated to the realm of tort law; it only comes up in the context of civil suits. Plaintiffs can sue for damages if they can prove definitively that the defendant has published false, defamatory statements about them. The statements must also be presented in a factual manner, and the plaintiff must be plainly identifiable as the subject of these statements.
If even one of these qualifications is disproven in court, a libel claim cannot stand. Each of these qualifications has also been hammered out in detail over many years of legal precedent. However, the pillar of truth is much more straightforward than the others. No matter what the defendant said, how they published it, or who they were speaking about, if the statement(s) in question is/are true, then the defendant cannot lose the case.
For this reason, proving the truth of published statements is largely recognized as the best defense in any libel case. In addition, since libel is a matter of tort law and not criminal law, decisions are made on a preponderance of evidence rather than evidence proving guilt beyond a reasonable doubt. Essentially, the better of the two arguments as to the truth of the matter wins.
However, there is a hefty disadvantage that courts have granted to one side of libel cases over the other: the burden of proof. In American courts, the burden of proof always falls to the plaintiff. If a person tries to collect damages from a defendant, that person has to be prepared to prove definitively to the court that whatever was said about the plaintiff was false and published in reckless disregard for whatever the truth may be. If the plaintiff cannot present evidence proving the falsity of the statements published, then the court will side with the defendant, deciding that the libel claim does not hold water.
In the United Kingdom, on the other hand, the burden of proof lies with the defendant. This is a remarkable disadvantage to the defendant, as it is much more difficult to prove the truth of a statement than its falsity. Furthermore, a plaintiff can easily prevent the defendant from gathering information or records necessary to prove the truth of a claim about themselves. Essentially, U.K. common law, even in modern day, values protecting the reputation of the defamed person more highly than protecting the democratic ideals of free expression and speaking truth to power.
On the surface, the practice of libel tourism may seem legally dubious. After all, why would one country have jurisdiction over a citizen of another? However, foreign courts have every right to enforce rulings in which American citizens or entities are litigants. Though no federal law exists on the subject matter, most states have adopted the Uniform Enforcement of Foreign Judgements Act, which binds Americans to foreign rulings and makes them entirely enforceable, even within the borders of the United States.
Libel tourism has been a big issue for authors, journalists, and publishers of all kinds for decades. Some states are fighting the issue with legislation. New York passed the Libel Terrorism Prevention Act in 2008, which bars foreign rulings on libel cases from being enforced in the state without a state court verifying that the verdict provides the same free speech protections guaranteed in our own legal system.
Finally, in 2010, Congress passed the SPEECH Act, making foreign libel case rulings unenforceable in the United States unless they comply with American free speech protections, including the First Amendment. Since then, libel tourism as an issue has died down, but not disappeared.
Though they cannot collect damages, plaintiffs may still seek to financially drain publishers. Through libel tourism, plaintiffs with far superior financial power can exploit individuals and publications with limited resources. By dragging publishers from America into the foreign courts of the U.K., plaintiffs force defendants to bleed funds in the form of travel and transnational legal and counsel fees.
Furthermore, financial attacks are not the only motivation for libel tourism. Oftentimes, claimants simply seek a public forum to disparage and delegitimize the person or publication that spoke against them. If a plaintiff can walk out of a British court with a ruling in their favor, claiming that the defamatory statements made were not true, their reputations receive the reparations they were looking for. In the end, even large media companies that fall victim to libel tourism walk away bloodied, bank accounts, and public reputation worse for wear.
Perhaps no amount of legislation can fully protect American citizens and businesses from the exploitation of foreign legal systems by affluent and powerful individuals. Even if foreign court decisions are rendered moot by order of Congress, the financial burden that comes with any litigation process, especially one in a foreign country, is often a death sentence for small media firms and individuals. Plaintiffs in libel cases are not afraid to fight dirty to come out on top in terms of public opinion. More often than not, winning in the “court of public opinion” is the entire reason for opening litigation in a court system that favors the libel claimant.