Case of the Day: Handshoe v. Perret
Posted on September 22, 2017
The case of the day is Handshoe v. Perret (S.D. Miss. 2017). The case is related to Trout Point Lodge Ltd. v. Handshoe, 729 F.3d 481 (5th Cir. 2013), the first appellate decision on the SPEECH Act. We haven’t seen the Act in a while, so just as a reminder, the purpose of the Act is to curb “libel tourism” by providing that US courts cannot recognize foreign defamation judgment if the foreign law does not provide the same protections for free speech as a US court would.
In the Fifth Circuit case, the court held that a Canadian defamation judgment against Handshoe could not be recognized. The new case involves a subsequent Nova Scotia defamation judgment, Trout Point Lodge, Ltd. v. Handshoe, 2014 NSSC 62, in which Perret, the defendant in the new case, was a plaintiff. Handshoe sought a declaration that the new Canadian judgment would not be enforceable in the United States. But the court dismissed the action without much analysis on the grounds that Handshoe “has not shown that any Defendant has sought to enforce this judgment in the United States.”
This may be right, but I think it would have been good to consider the section of the SPEECH Act on declaratory judgment actions, 28 U.S.C. § 4104, which provides:
Any United States person against whom a foreign judgment is entered on the basis of the content of any writing, utterance, or other speech by that person that has been published, may bring an action in district court, under section 2201(a), for a declaration that the foreign judgment is repugnant to the Constitution or laws of the United States.
Now, maybe in the absence of a real dispute it would be unconstitutional for a federal court to reach the question, because the dispute is not ripe in the constitutional sense. But Congress’s intent seems to have been to allow declaratory judgment actions in any foreign defamation case, so the court should at least have engaged seriously with the constitutional issues. As it is, the decision does not even mention § 4104.