A couple of weeks ago, Donald Trump sued the British Broadcasting Corporation for libel, alleging that the BBC had falsely reported that Trump had incited the January 6 riots at the Capitol. Now, we all watched Trump’s speech live on television and can judge four ourselves what he said and what he meant. But I don’t want to write a post about that, especially on Christmas! Instead, here are a few observations about the new lawsuit.

First, jurisdiction. According to the complaint, the court (the US District Court for the Southern District of Florida) has jurisdiction under 28 USC § 1332 because the BBC is a foreign corporation and Trump is a US citizen. Sounds reasonable, but the BBC is not just any foreign corporation. It’s a “public corporation of the Department for Culture, Media and Sport.” I don’t claim to know for sure, but I suspect that the BBC is an agency or instrumentality of the British state. Here is the statutory definition (from 28 USC § 1603(b)):

An “agency or instrumentality of a foreign state” means any entity—

1. which is a separate legal person, corporate or otherwise, and
   
2. which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and
3. which is neither a citizen of a State of the United States as defined in section 1332 (c) and (e) of this title, nor created under the laws of any third country.

If that’s right, then the court does not have jurisdiction for the reasons Trump claims. If it has jurisdiction, it has jurisdiction because one of the exceptions to the ordinary rule of foreign sovereign immunity in 28 USC § 1605 applies.

If Trump’s lawyers spotted this issue and pleaded the case correctly, it’s not clear to me that they would have been wrong to assert jurisdiction under the commercial activity exception to foreign sovereign immunity . I commented on a similar issue a few years ago when I opposed a cert. petition in Merlini v. Canada, a case I brought (and won!) against the government of Canada on behalf of a locally-engaged worker injured on the job at the Canadian consulate in Boston. Here’s what I wrote:

Nor is the First Circuit’s decision at odds with the two other decisions Judge Lynch cited, Gregorian v. Izvestia, 871 F.2d 1515 (9th Cir. 1989), and MacArthur Area Citizens Ass’n v. Republic of Peru, 809 F.2d 918 (D.C. Cir. 1987). Gregorian was a libel claim against the Soviet state-owned newspaper, Izvestia. The key fact in Gregorian—the fact that made it clear that the Soviet government was engaged in governmental rather than commercial activity—was that Izvestia was “the voice of an official Soviet agency.” Gregorian, 871 F.2d at 1522. Izvestia, in other words, was more like the Federal Register than like the Boston Globe, and the Soviet government’s publication of its views was not like the private commercial publication of news.

The irony here is that Trump’s claim can only work—assuming I’m right to say that this is an FSIA case—if the BBC is not state propaganda but rather an independent news source, or in other words, part of the free press.

That being said, I was somewhat surprised, and maybe even pleasantly surprised, that the BBC waived service of process. It’s usually sporting and classy to waive service of process, especially once you realize that you are not waiving any jurisdictional defenses. There are rare occasions where it doesn’t make sense to waive, e.g., when you are in a jurisdiction where you do not think it is possible that the plaintiff will be able to serve process on you, but the UK isn’t such a jurisdiction. I still might not have waived in this case, for two reasons: first, a certain kind of lawyer with a case involving service abroad will tend to get it wrong in a splashy way instead of getting it right in the obvious way that requires a little bit of legal research. (See, for example, my account from 2016 of efforts by a group called Freedom Watch to serve process on OPEC). Second, it’s just pretty unusual, I think, for a foreign sovereign to waive service, particularly given that a plaintiff who does not even realize that the defendant is a foreign sovereign (or an agency or instrumentality of a foreign sovereign) is unlikely to serve process correctly under the FSIA’s special statute on service.

There is another, most substantive, irony in the case. In the United States, it’s really, really hard to libel a public figure. To satisfy the First Amendment, the plaintiff has to prove that the defendant made the defamatory and false statement with “actual malice.” The wide latitude we give to speakers and writers who speak or write about public figures is or was a major point of difference between American law and British law. And that difference was the justification for the SPEECH Act, a US federal statute that prohibits the recognition of foreign libel judgments issued under laws that provide less protection than the First Amendment provides to speakers. Given that no one is more clearly a public figure than the President, and nothing is of greater public concern that reporting on a speech the President gave that preceded an insurrection at the Capitol, and that may or may not have fomented the insurrection, it’s just absurdly ironic that an American politician would ask an American court for damages for libel from a British broadcaster.

What is my prediction about the case? I have given up predicting what success or failure Donald Trump will have in American courtrooms.