Defamation, Libel Tourism, and the SPEECH Act of 2010: The First Amendment Colliding with the Common Law

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Defamation, Libel Tourism, and the SPEECH Act of 2010: The First Amendment Colliding with the Common Law. Harry Melkonian. Amherst, NY: Cambria Press, 2011. 367 pp. $119.99 hbk.

These days the global influence of the U.S. Constitution is declining. But it is not entirely clear whether this applies to the real and perceived impact of U.S. free speech law abroad. For example, "actual malice," the uniquely American libel doctrine that is decidedly media friendly, has been adopted by Argentina, Hungary, and other countries. As a recent U.S. law review article noted, "actual malice" has led many countries "to engage in a judicial conversation with American law about what freedom of speech and the press should mean in an open democracy."

Defamation, Libel Tourism, and the SPEECH Act of 2010 centers on a proposition by Australian lawyer Harry Melkonian that American and English libel laws are converging, and thus Congress passed the SPEECH (Securing the Protection of our Enduring and Established Constitutional Heritage) Act to address "libel tourism"-in which libel plaintiffs avoid speech-friendly American law to sue in foreign countries- as a nonissue. The SPEECH Act bars enforcement of foreign libel judgments in the United States if they violate the First Amendment.

This book offers a detailed, albeit occasionally repetitive, study of U.S. and U.K. libel law, based on the author's doctoral dissertation at an Australian university. It argues that America and England are increasingly similar to each other in balancing freedom of speech with reputational interest. Melkonian claims that English law has expanded freedom of the press since Reynolds v. Times Newspapers Ltd. (1999) through "responsible journalism" as a libel defense, which he maintains substantially parallels the U.S. Supreme Court's "watered down" application of "actual malice" in Harte-Hanks Communications v. Connaughton (1989). No doubt this is a provocative argument. In support of his claim, the author draws on the "doctrinal law" of the United States and England.

Melkonian extensively examines the American "actual malice" rule and the English "reasonable journalism" defense. But his analysis of the Harte-Hanks impact on American law might have been more comprehensive and in-depth. This is all the more compelling, given that the his central argument revolves around the Harte-Hanks-induced "erosion" of First Amendment protection of press freedom in favor of reputation. As "a special case of convergence" of Anglo-American defamation law, Melkonian justifiably gives considerable attention to "reportage," for both U.S. and U.K. law recognize it as a defense for libel claims against the media in republishing a defamatory newsworthy statement about a matter of public interest. It is surprising, however, that there is little mention of the direct impact of the American "neutral reportage" doctrine on the English "reportage" defense.

A lengthy overview of the "defamation privilege" in U.S. and U.K. law is framed by the comparative law principle of functionality: "[T]he legal system of every society faces essentially the same problems, and solves these problems by quite different means though very often with similar results." Melkonian's discussion of the New York Times "actual malice" rule vis-à-vis the Reynolds "reasonable journalism" defense is contextually informative.

In explaining U.S. and U.K. standards on defamation versus freedom of speech, he turns to various free speech theories (i.e., self-government, marketplace of ideas, and discovery of truth). His discussion is not limited to England and the United States, however, as he considers Canada, Australia, and New Zealand for a comparative look at how other Commonwealth countries address libel law issues-whether similarly or differently from Anglo-American law.

For those who wonder about the principle of comity's relevance to American law on foreign libel judgments, the "Reynolds Defence" chapter is an excellent read. …