Tag Archives: SPEECH Act

Case of the Day: Mees v. Buiter

The case of the day is Mees v. Buiter (2d Cir. 2015). This is the second significant appellate decision on § 1782 in a matter of days—I covered the new Posco case last week. Willem H. Buiter had made accusations against Heleen Mees that had led to her being arrested and charged with misdemeanors for stalking, menacing, and harassment in New York. Buster had claimed that Mees “had sent him thousands of emails and on several occasions attempted to meet him at his residence, despite numerous requests that she cease all contact with him.” He also claimed that her expressed wish that his “plane falls out of the sky” or her “sending him a picture of dead birds” caused him to fear for his safety. There were some racy bits too, which I won’t cover here. Because of the parties’ prominence—both are prominent economists, and Buiter coined the term “Grexit”—the case was covered in the press. The criminal case ended with an adjournment in contemplation of dismissal, contingent on Mees’s agreement to participate in counseling and to comply with an order of protection Buiter and his wife had obtained.

Mees brought a § 1782 application, seeking discovery from Buiter “as part of her Dutch attorneys’ investigation of a defamation claim against Buiter” in the Netherlands “and to prepare for the prosecution of such claim.” The basis of Mees’s claim was that she wasn’t a stalker, but instead, she and Buiter had “regularly had romantic encounters.” She wanted discovery in order to corroborate her claim that she had met Buiter on twenty-seven “Romantic Encounter Dates.”
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Case of the Day: In re Application of Ontario Principals’ Council

The case of the day is In re Application of Ontario Principals’ Council (E.D. Cal. 2013). This is another § 1782 case arising out of a Canadian defamation action that I covered late last year. As in the earlier case, the judge granted the application after conducting an Intel analysis but refused the applicant’s request for an order enjoining the target of the subpoena from notifying its customers of the subpoena’s existence.

The interesting aspect of the decision is the Court’s brief First Amendment discussion. In the context of deciding whether the application was consistent with public policy, the judge noted that the First Amendment does not shield defamatory speech. Fair enough. But it would have been nice to have a discussion of the relevant differences between US and Canadian defamation law, and a consideration of the implications, if any, of the SPEECH Act for the issue. The SPEECH Act doesn’t say so, but I suppose one could think that if a foreign defamation judgment would be unenforceable in the United States, then as a matter of public policy the United States should not provide judicial assistance in the prosecution of the action.

Case of the Day: Trout Point Lodge v. Handshoe

The case of the day is Trout Point Lodge, Ltd. v. Handshoe (5th Cir. 2013). It is, as far as I know, the first federal appellate decision to focus on the SPEECH Act in a major way. Readers may want to refer to overview post of the Act. In short, the Act creates a rule against recognition of foreign defamation judgments if the foreign law is less protective of freedom of speech than US law and if the plaintiff would not have prevailed had the action been brought in the United States.

Handshoe was a Mississippi blogger. The claim was that he had defamed Vaughan Perret, Charles Leary, and Trout Point Lodge, Ltd., all of Nova Scotia, by tying them to a Louisiana political scandal on his blog. Perret, Leary, and Trout Point sued in the Nova Scotia Supreme Court. They alleged that they Handshoe’s statements were “directly defamatory and were also defamatory by both true and false innuendo in that they would tend to lower the opinion or estimation of the plaintiffs in the eyes of others who read the defamatory publications as a series, or alternatively, in parts.” The plaintiffs alleged generically that the defamatory statements were false, but they did not, in their pleadings, make allegations to specifically refute any particular defamatory statement.

Handshoe defaulted in the Nova Scotia action, and the court held a hearing to assess damages. Perret and Leary testified. After the hearing, the court entered judgment for compensatory and punitive damages and also permanently enjoined Handshoe from writing about the plaintiffs. 1

Trout Point sought recognition and enforcement in the Circuit Court of Hancock County, Mississippi. Handshoe removed the case to the US District Court for the Southern District of Mississippi under 28 USC § 4103 and the parties cross-moved for summary judgment. The judge granted Handshoe’s motion, and Trout Point appealed.

The Fifth Circuit held that Nova Scotia’s law did not provide “at least as much protection for freedom of speech and press in that case as would be provided by the first amendment to the Constitution of the United States and by the constitution and law of the State in which the domestic court is located,” as the statute requires. This is an easy one. In Nova Scotia, the defendant has the burden to prove the truth of the defamatory statements as an affirmative defense; in the United States, as a general matter, the plaintiff has the burden to prove the falsity of the defamatory statements as part of the prima facie case. 2

The more difficult question was whether a Mississippi court would have found Handshoe liable. The district court had held that a Mississippi court would not have found Handshoe liable because Trout Point had failed to prove the falsity of the defamatory statements. On appeal, Trout Point pointed to the Nova Scotia default, which, in Canada, meant that Handshoe was deemed to have admitted the allegations of the complaint. Trout Point also pointed to the Nova Scotia court’s findings of fact entered after the assessment of damages hearing.

The Fifth Circuit’s approach was to say that a Mississippi court would not have entered a default judgment on the pleadings Trout Point had made, because Trout Point failed to allege sufficiently (for US law purposes) that the defamatory statements were false. This approach seems at least problematic to me, because it’s not clear whether the policy of the statute is to require US defendants to appear and defend in the foreign defamation case in order to claim the protection of the statute. See, e.g., Marissa Gerny, The SPEECH Act Defends the First Amendment: A Visible and Targeted Response to Libel Tourism, 36 Seton Hall Legis. J. 409, 437 (2012) (Under § 4104 of the statute, “If an American finds him or herself in the position of defending a defamation suit abroad, he or she can default on the suit and seek declaratory relief in the United States”). Indeed, one of the English libel cases that motivated enactment of the SPEECH Act, Khalid bin Mahfouz’s case against Rachel Ehrenfeld arising out of her book, Funding Evil: How Terrorism Is Financed—and How to Stop It, was a default judgment case. It doesn’t seem right to permit a foreign plaintiff, by adding allegations to its foreign complaint that would be sufficient to permit a US court to enter a default judgment, to avoid the SPEECH Act even though, if the US defendant defended the case at trial, the foreign plaintiff would not be required to prove the added allegations. On the other hand, the declaratory judgment provision of the statute, 28 USC § 4104, provides for a declaratory judgment action, in the US, but only by a person “against whom a foreign [defamation] judgment is entered,” not a person against whom a foreign defamation action is pending. Still, I think the better approach is to ask whether a US court would have entered a judgment against the defendant after a trial on the merits, not whether a US court would have entered a judgment for procedural reasons given the same circumstances as existed in the foreign case.

Notes:

  1. The plaintiffs did not seek enforcement of this prior restraint in the United States for obvious constitutional reasons.
  2. Actually, US law is not quite so simple—see Noonan v. Staples, Inc. (1st Cir. 2009), for example.