–Ben Kwan, Attorney
I returned from Paris on Tuesday after a short vacation. As a bit of a news junky, it was admittedly an exciting time to be there. When I arrived on Friday, we headed straight for the scene of the attack on journalists at the offices of Charlie Hebdo. Just a short while earlier, Secretary John Kerry had laid a wreath there and the area was bustling with people curious to see the place where terrorists murdered 12, simultaneously attacking the values of free speech and free expression.
We were struck by the artistic expressions of grief and sorrow. This particular display down a small street from the main memorial area was particularly gripping:
The resounding worldwide reaction to the murders, undertaken to avenge cartoons that the terrorists said had mocked Islam, was a celebration and reaffirmation of the societal value of free speech and free expression.
Upholding these values necessarily means taking the bad with the good, even when sensible judgment counsels otherwise.
The mayor of Paris on Tuesday said she intended to sue Fox News after Fox had run news reports that parts of France and England were deemed “no-go zones” that were off limits to non-Muslims. Last weekend, Fox News issued a series of apologies for its erroneous reporting on the purported “no-go zones.” In its original reporting, Fox and its talking-heads erroneously reported that areas of Paris and other parts of France and Europe were off-limits to non-Muslims and dominated by Sharia law.
The shoddy journalism and down-right inaccuracies aside, Paris Mayor Anne Hidalgo would be wise to realize that Fox’s error in this instance isn’t worthy of a lawsuit. It’s an example of taking the bad with the good, even if her Parisian sense of good judgment—reeling and recovering from this month’s attacks—counsels otherwise. Or in other words, a suit wouldn’t be wise even where, as Mayor Hidalgo puts it, the “image of Paris has been prejudiced and the honor of Paris has been prejudiced.”
Media law experts like Professor Jane Kirtley of the University of Minnesota, who spoke to Reuters after Mayor Hidalgo announced her intent to explore legal action against Fox News, have decried the threat of suit primarily because Paris likely has no cause of action. Professor Kirtley told Reuters, “[t]his is an example of someone from another country not recognizing the force of the First Amendment, which allows criticism of governmental entities.”
As media writers have started to observe, including Erik Wemple at the Washington Post, the irony of the mayor’s threatened suit is painfully lost on her following the worldwide refrains of “Je suis Charlie.”
Moreover, the chances of enforcing a judgment against Fox News—even a judgment obtained under the laws of a presumably more lenient and less-press-friendly jurisdiction like France—are not favorable to Mayor Hidalgo.
In 2010, President Obama signed the SPEECH Act (Securing the Protection of our Enduring and Established Constitutional Heritage Act). As other commentators have been picking up on since yesterday, the Act makes a host of foreign libel judgments unenforceable in U.S. Courts.
I took a look at the provision of the Act that would likely apply in this case, located at 28 U.S.C. Sec. 4102. The federal statute includes two exceptions to the general rule that a foreign defamation judgment isn’t enforceable in a U.S. court. Either of those exceptions presents steep, steep burdens for Mayor Hidalgo.
To enforce the foreign judgment against Fox News, Mayor Hidalgo would have the burden of proving that either the foreign court “provided at least as much protection for freedom of speech and press” as the First Amendment, or that Fox News “would have been found liable for defamation by a domestic court applying the first amendment….”
A U.S. Court wouldn’t likely entertain such a suit. The Chicago Tribune has a great (if old, it’s from 1997) summary of the City of Chicago’s attempt, back in the 1920s, to sue the Chicago Tribune for libel against the city. Bottom line: the suit didn’t work and an attempt by Paris to sue Fox News probably wouldn’t survive a motion to dismiss, either.
Mayor Hidalgo would be wise to leave the lambasting to the likes of the John Stewarts of the world and let news consumers demerit Fox News for this error. Then we’d have one fewer opportunity to be distracted from the real issue at hand, which is, the celebration and reaffirmation of free expression and free speech that cannot be silenced by senseless terrorism.