In a case of first impression, the Fifth Circuit recently applied the Securing the Protection of our Enduring and Established Constitutional Heritage Act (“SPEECH Act”) to protect a blogger from a defamation-based default judgment obtained in Canada.  28 U.S.C. § 4201; Trout Point Lodge, Ltd. v. Handshoe, No. 13-60002 (5th Cir. Sept. 5, 2013).

The plaintiffs had sought to enforce the judgment in Mississippi state court, and the defendant removed the case to federal court under the Act, enacted in 2010.

The Mississippi-based defendant ran a blog ostensibly providing a forum for local residents to gather and share information regarding various issues that impact the Gulf Coast. One of the blog’s focal points had been the alleged corruption by a local government official, who apparently owned, with others, a lodge in Canada. The lodge and its owners filed suit in Canada related to statements made about the lodge on the blog.

The lodge took issue with the following alleged content on the blog:

  1. content linking the lodge with the alleged corruption, the thrust of which was that lodge and its owners were somehow involved in the corruption;
  2. content implying or stating that the lodge “misled investors and court officials in litigation” with a Canadian agency;
  3. content regarding the lodge’s business failures, including near bankruptcy, having once relied on the favors of the allegedly corrupt government official; and
  4. the anti-homosexual rhetoric and rants of the defendant that amplified the postings.

But in stating its defamation claim, the lodge generically alleged that the blog posts were false, while not making any specific allegations to refute the truth of the posts at issue.

Noting that Congress enacted the SPEECH Act to protect from the threat of “libelous tourism,” the Fifth Circuit held that the lodge could not satisfy its burden under the SPEECH Act to show either that

  1. Canadian law provided at least as much protection for freedom of speech as would be provided by the First Amendment and relevant state law, or
  2. the defendant would have been found liable for defamation by a Mississippi court.

Regarding the first prong, the court noted that Canadian defamation law was derived from English law, which has long been held to be less protective than the First Amendment, and importantly that it does not require a plaintiff to prove falsity.  Regarding the second prong, the Court held that the plaintiff had failed to allege facts to the effect that the blog posts were false—generally alleging that the statements were false without alleging specific facts in support was insufficient.

The Fifth Circuit set a high bar for a plaintiff seeking to enforce a foreign defamation judgment in the United States.  It made clear that general allegations of falsity are insufficient if not supported by specific factual allegations. It similarly held that a court could view some of the allegations as legal conclusions, not factual allegations.

This article was prepared by James V. Leito IV (james.leito@nortonrosefulbright.com / +1 214 855 8004), an associate in Norton Rose Fulbright’s litigation practice group.