Book Review: Defamation, Libel Tourism, and the SPEECH Act of 2010: The First Amendment Colliding with the Common Law by Harry Melkonian

Abstract

Defamation, Libel Tourism, and the SPEECH Act of 2010: The First Amendment Colliding with the Common Law. Harry Melkonian. Amherst, NY: Cambria Press, 2011. 367 pp. $119.99 hbk.These days the global influence of the U.S. Constitution is declining. But it is not entirely clear whether this applies the real and perceived impact of U.S. free speech abroad. For example, actual malice, the uniquely American doctrine that is decidedly media friendly, has been adopted by Argentina, Hungary, and other countries. As recent U.S. review article noted, actual malice has led many countries to engage in judicial conversation with American about what freedom of speech and the press should mean in an open democracy.Defamation, Libel Tourism, and the SPEECH Act of 2010 centers on proposition by Australian lawyer Harry Melkonian that American and English laws are converging, and thus Congress passed the SPEECH (Securing the Protection of our Enduring and Established Constitutional Heritage) Act address libel tourism-in which plaintiffs avoid speech-friendly American sue in foreign countries- as nonissue. The SPEECH Act bars enforcement of foreign judgments in the United States if they violate the First Amendment.This book offers detailed, albeit occasionally repetitive, study of U.S. and U.K. law, based on the author's doctoral dissertation at an Australian university. It argues that America and England are increasingly similar each other in balancing freedom of speech with reputational interest. Melkonian claims that English has expanded freedom of the press since v. Times Newspapers Ltd. (1999) through responsible journalism as defense, which he maintains substantially parallels the U.S. Supreme Court's watered down application of actual malice in Harte-Hanks Communications v. Connaughton (1989). No doubt this is provocative argument. In support of his claim, the author draws on the doctrinal law of the United States and England.Melkonian extensively examines the American actual malice rule and the English reasonable journalism defense. But his analysis of the Harte-Hanks impact on American might have been more comprehensive and in-depth. This is all the more compelling, given that the his central argument revolves around the Harte-Hanks-induced erosion of First Amendment protection of press freedom in favor of reputation. As a special case of convergence of Anglo-American law, Melkonian justifiably gives considerable attention reportage, for both U.S. and U.K. recognize it as defense for claims against the media in republishing defamatory newsworthy statement about matter of public interest. It is surprising, however, that there is little mention of the direct impact of the American neutral doctrine on the English reportage defense.A lengthy overview of the defamation privilege in U.S. and U.K. is framed by the comparative principle of functionality: [T]he legal system of every society faces essentially the same problems, and solves these problems by quite different means though very often with similar results. Melkonian's discussion of the New York Times actual malice rule vis-a-vis the reasonable journalism defense is contextually informative.In explaining U.S. and U.K. standards on versus freedom of speech, he turns various free speech theories (i.e., self-government, marketplace of ideas, and discovery of truth). His discussion is not limited England and the United States, however, as he considers Canada, Australia, and New Zealand for comparative look at how other Commonwealth countries address issues-whether similarly or differently from Anglo-American law.For those who wonder about the principle of comity's relevance American on foreign judgments, the Reynolds Defence chapter is an excellent read. …