lundi 16 mars 2015

Major law review article says Trout Point Lodge federal appeal case "a paradigm model of the flaws of the SPEECH Act"

In a 57-page article entitled "If You Don't Have Anything Nice to Say, Say It Anyway. Libel Tourism and the SPEECH Act" author Nicole Manzo conducts a detailed, critical review of the federal legislation the SPEECH Act, and concludes it is overly broad and lacking in necessary guidance for the courts. She refers to Trout Point Lodge, Charles Leary, and Vaughn Perret's loss in the Federal Fifth Circuit Court of Appeal as "monumental," but in the wrong way.
Considering the frequency of libel tourism, one might have assumed that the first case to apply the SPEECH Act would have been a testament to the benefits of, and the need for, the Act. However, Trout Point Lodge was not an exemplar of libel tourism or illegitimate forum shopping. The forum selected in Trout Point Lodge was not chosen to “chill” free speech. Rather, the forum was selected because it was both plaintiffs’ domicile and the jurisdiction where the defamatory statements were aimed. In addition, and most importantly, the forum was the location where the plaintiffs suffered harm to their reputations. Trout Point Lodge was monumental, but not for First Amendment protection or the deterrence of libel tourism. The case was monumental for exemplifying the broad reach of the Act and lack of guidance that Congress supplied the courts. In essence, Trout Point Lodge is a paradigm model of the flaws of the SPEECH Act.
The article recommends altering the legislation due to the failure of its just application in the Trout Point Lodge case.  Referring to the $425,000 Canadian defamation judgment against homophobic blogger Douglas Handshoe, the author states: "if there was one judgment that was capable of United States enforcement under the SPEECH Act, it was this judgment. Nevertheless, the judgment in Trout Point Lodge did not even come close to enforcement." Though the article focuses on the published 5th circuit decision, her conclusions apply equally to Judge Louis Guirola's trial court decision. She determines, too, that the Act provides too little protection for foreign defamation plaintiffs, which in the Trout Point case included two American citizens.

A major point of the article is that international comity will be irreperably harmed by the Act in its current version, and that this is already occurring in the Nova Scotia courts. "The over-inclusive nature of the SPEECH Act risks offending international comity. Such a risk could possibly result in non-enforcement of United States judgments in foreign courts or some other form of legal retaliation."

In contradistinction to Douglas Handshoe's incessant refrain that the Trout Point plaintiffs are "libel tourists" and forum shoppers, Manzo also points out that the Trout Point plaintiffs were perfectly correct in filing the lawsuit against Handshoe in the place they did, Nova Scotia.

Finally, the article points up serious potential for unequal application of the law, which in this case affected the rights of two U.S. citizens, Perret & Leary: "foreign, private defamation defendants being afforded more constitutional protection than domestic private defamation defendants." Manzo points out that many U.S. jurisidctions, incluing New York State, retain defamation as tort of strict liability on occasions of purely private libel. This makes the common law of defamation in the U.S. first cousins with such law in Canada and the U.K. Things aren't quite as simple on the SPEECH Act front, as Mr. Doug Handshoe would have everyone believe.

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