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Our federal government's basic purpose

By Frank Salvato
web posted February 22, 2010

In February of 2009, legislation was introduced in the 111th Congress that would protect the First Amendment rights of United States citizens when faced with malicious lawsuits, brought against them in foreign courts, claiming defamation. The Free Speech Protection Act of 2009 is meant not only to secure and assure a US citizen's First Amendment right to free speech in the aforementioned circumstance, but to serve as a tool in guaranteeing our nations sovereignty under constitutional law. As of this writing, Senate Bill 449, officially titled as introduced as A Bill to Protect Free Speech, languishes in the Senate Judiciary Committee. We all must ask why.

The Free Speech Protection Act of 2009 (the short title for S449) is meant to protect writers, authors, lecturers and any other US citizen against libel tourism, a phrase emanating from a lawsuit over the book Funding Evil, by Dr. Rachel Ehrenfeld, explained in a short film titled The Libel Tourist and in an article titled, A Federal Law is Needed to Deter Libel Tourism, by Daniel J. Kornstein. Mr. Kornstein refers to libel tourism as:

...when a person, usually prominent and wealthy, sues an American author for libel in a country that lacks the equivalent of First Amendment protections and where the American author never took any steps to publish or market the allegedly libelous work. Foreign courts may assert jurisdiction over American authors in these cases because the publication could be read over the Internet or because a handful of copies made their way into the foreign country via Amazon.com. Libel tourists often file suit in England because the laws there are very plaintiff friendly, and libel plaintiffs can obtain judgments there that they could not obtain in the United States.

So, a wealthy individual, lets say a Saudi Sheik, who has come under scrutiny for actions identified as pro-jihadi or in support of al-Qaida, by an author or lecturer who happens to be an American citizen, can purchase a dozen copies of the book, published lecture notes or DVD in Britain, file a lawsuit for defamation and win adjudication  including monetary damages, all without the author or lecturer ever having set foot on British soil or having contracted to have the intellectual property offered in that country.

Similarly, an American writer, journalist or author who uncovers and publishes  exclusively in the United States  information about, let's say, a known and wanted al-Qaida operative who was attending classes at a foreign university so that he could acquire knowledge of nuclear technology while gaining access to the university's nuclear research reactor  activities that directly threaten the national security of the United States, mind you  that writer, author or journalist could find himself the target of a foreign-court defamation lawsuit subjecting him to foreign law jurisdiction without ever having been in that country; foreign law that completely ignores his First Amendment right to free speech under the Bill of Rights, the first ten amendments to the United States Constitution.

Can you understand the danger in allowing foreign courts to adjudicate against US citizens who have never been physically present in that foreign jurisdiction? Allowing this type of grotesque over-reaching legal precedent to stand not only decimates a US citizen's constitutional right to free speech, it attacks the very sanctity of the US Constitution as law of the land. To allow foreign courts to adjudicate against US citizens  especially when that adjudication transgresses constitutional rights  when they have had no physical or intended presence on that country's soil, is a direct and vicious attack on US sovereignty.

The Father of the US Constitution, and certainly a man in possession of more intellect than almost all who now serve in elected office, James Madison, is quoted as saying:

It is sufficiently obvious, that persons and property are the two great subjects on which Governments are to act; and that the rights of persons, and the rights of property, are the objects, for the protection of which Government was instituted. These rights cannot well be separated.

In that, Madison identified our federal government's basic purpose, to protect the constitutional rights of the American people. This duty, this obligation, is the single most important function of the US government. Yet, a piece of legislation that simply re-asserts the protection of our citizenry's absolute right to free speech lays in debate in the Senate Judiciary Committee. How can this possibly be? What could possibly be in question?

A summary of The Free Speech Protection Act of 2009, as provided by the Library of Congress, via its website Thomas.gov, states:

Allows any US person against whom a lawsuit for defamation is brought in a foreign country for defamation on the basis of the content of any speech by that person that has been published, uttered, or otherwise disseminated in the United States to bring an action in a US district court against any person who, or entity which, brought the suit, if: (1) the speech at issue in the foreign lawsuit does not constitute defamation under US law; and (2) the person or entity which brought the foreign lawsuit serves or causes to be served any documents in connection with such foreign lawsuit on a US person.

Allows the award of treble damages if it is determined by a preponderance of the evidence that the person or entity bringing the foreign lawsuit intentionally engaged in a scheme to suppress rights under the First Amendment to the Constitution by discouraging publishers or other media from publishing, or by discouraging financial supporters from employing, retaining, or supporting the research, writing, or other speech of an individual.

In essence, what this legislation  and its House counterpart HR1304  says is that the First Amendment free speech rights of US citizens will not be usurped by foreign-court adjudications based on the content of any published works disseminated in the United States unless they meet the US Code defining defamation.

Because we are a sovereign nation, a nation with a judicial system based on the rule of law emanating uniquely from the United States Constitution, it is almost embarrassing that such legislation would have to be crafted at all. Truth be told, the fragile knowledge of the US Constitution possessed by students in the 8th grade includes a solid understanding of the right to free speech and the historical events that led our Framers to include this most basic of rights into our Charters of Freedom.

So, why is this legislation languishing in the Senate Judiciary Committee? Because we are so saddled with the ideological cancer of one-world political correctness, that it has become more important to not hurt feelings than it is to defend a most cherished and absolute right.

While engaging the office staffers of several senators on the Judiciary Committee, two people directly affected by libel tourism and foreign-court adjudication  who shall remain nameless so as not to exact the ire of the political elite upon their quest for constitutional justice  were told, and I paraphrase:

If we try to safeguard the constitutional rights of Americans in [a foreign country] then a [foreign] company would feel exempt from US law should it be in opposition to US law, thus providing an incentive to adhere to the [foreign country's] law.

And then there was an even more disturbing politically correct response coming from one Senator's office:

Rights of Americans cannot be upheld in foreign courts of law because we would offend our friends.

The US Constitution specifies quite clearly in Article VI, Clause 3:

"The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution..."

For this manner of thinking to even be considered  let alone embraced  by our elected officials is not only a violation of their oaths of office to protect the US Constitution and the rights it affords every US citizen, it is seditious.

In fact, as our military engages Islamic jihadists on the field of battle in what two presidents have now declared a war, one could make a pretty strong case for treason, where the attack on US sovereignty is concerned.

One has to wonder how quickly the politically correct creatures of the Judiciary Committee would advance this legislation to the full Senate if those engaged in the Tea Party Movement started asking why they don't champion protecting a US Citizens free speech rights... ESR

Frank Salvato is the Executive Director and Director of Terrorism Research for BasicsProject.org a non-profit, non-partisan, 501(c)(3) research and education initiative. His writing has been recognized by the US House International Relations Committee and the Japan Center for Conflict Prevention. His organization, BasicsProject.org, partnered in producing the original national symposium series addressing the root causes of radical Islamist terrorism. He is a member of the International Analyst Network. He also serves as the managing editor for The New Media Journal. Mr. Salvato has appeared on The O'Reilly Factor on FOX News Channel, and is a regular guest on talk radio including on The Captain's America Radio Show airing on AM1220 WSRQ and on the Internet catering to the US Armed Forces around the world and on The Roth Show with Dr. Laurie Roth syndicated nationally on the USA Radio Network. His opinion-editorials have been published by The American Enterprise Institute, The Washington Times & Human Events and are syndicated nationally. He is occasionally quoted in The Federalist. Mr. Salvato is available for public speaking engagements. He can be contacted at contact@newmediajournal.us.






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