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Civil Action No. 94-1151 RMU UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 877 F. Supp. 1; 1995 U.S. Dist. LEXIS 1352; 23 Media L. Rep. 1367
PRIOR HISTORY: See: Telnikoff v Matusevitch, [1992] 2 A.C. 343; [1991] 4 All E.R. 817 (House of Lords, Nov. 14, 1991); [1991] 1 Q.B. 102 (Court of Appeal) SUBSEQUENT HISTORY: See: 702 A.2d 230 (1997) (question certified to Court of Appeals of Maryland). COUNSEL: [**1] Arnon D. Siegel, David C. Finn, DAVIS
POLK & WARDWELL, 1300 I Street, N.W., Washington, DC 20005. Jerome G.
Snider, DAVIS POLK & WARDWELL, 450 Lexington Avenue, New York, NY 10017,
Attorneys for Plaintiff. JUDGES: Ricardo M. Urbina, United States District Judge OPINION BY: Ricardo M. Urbina OPINION: [*2] Document No. 22, 23, 24,
25, 28, 29, 31, 32, 33, 34, 35 MEMORANDUM ORDER Granting Plaintiffs’ Motion for Summary Judgment Upon consideration of Plaintiff’s Motion for Summary Judgment, Defendant’s [**2] Opposition thereto, Defendant’s Motion to Dismiss and for Summary Judgment, Plaintiff’s Opposition thereto, Plaintiff’s Motion to Dismiss Defendant’s Counterclaims or for Summary Judgment, and the briefs filed by amicus curiae, n1 the court grants summary judgment for the Plaintiff. The court finds that there is no genuine issue as to any material fact as 1) Maryland statutory law indicates that the defendant holds an unrecognized foreign judgment and 2) plaintiff’s statement is considered by the Supreme Court to be protected speech under the First Amendment. Because recognition and enforcement of a foreign judgment, based on libel standards that are repugnant to the public policies of the State of Maryland and the United States, would deprive the plaintiff of his First and Fourteenth Amendment rights, the court grants summary judgment for the plaintiff as a matter of law. n1 The Anti-Defamation League, The New York Times Company, Inc., The Associated Press, National Broadcasting Company, Inc., Cable News Network, Inc., The Copley Press, Inc., and Magazine Publishers of America’s filed as amicus curiae. I. Recognition of a Foreign Judgment A. The Uniform Foreign-Money Judgments Recognition Act of 1962 and the Uniform Enforcement of Foreign Judgments Act of 1964 Before a party can enforce a judgment from a
foreign country in the United States, the moving party must have the foreign
judgment recognized by the state in which he is seeking to enforce the judgment.
In the State of Maryland, the Uniform Foreign-Money Judgments Recognition Act of
1962 (the “Recognition Act”) and the Uniform Enforcement of Foreign Judgments
Act of 1964 (the “Enforcement Act”) govern the procedure for the recognition and
enforcement of a foreign judgment. “except as provided in section 10-704, a foreign judgment meeting the requirements of section 10-702 is conclusive between the parties to the extent that it grants or denies recovery of a sum of money. The foreign judgment is enforceable in the same manner as the judgment of a sister state which is entitled to full faith and credit.” Section 10-704 lists a number of grounds for non-recognition of a foreign judgment, four which are mandatory grounds and five [**4] which are discretionary grounds for non-recognition. Therefore, before a party can enforce a foreign-country judgment, the Recognition Act requires a proceeding to determine preliminarily whether the court should recognize the foreign-country judgment. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES section 481 cmt. g (1986) (noting that “enforcement of a debt arising out of a foreign judgment must be initiated by civil action, and the judgment creditor must establish a basis for the exercise of jurisdiction by the enforcing court over the judgment creditor or his property). Once the court recognizes the foreign-country judgment, the moving party can simply file that judgment in order to enforce it. Section 11-802 states that: (a) Generally — (1)(i) Except as provided in subparagraphs (ii) and (iii) of this paragraph, a copy of any foreign judgment [*3] authenticated in accordance with an act of Congress or statutes of this State may be filed in the office of the clerk of a circuit court. (2) The clerk shall treat the foreign judgment in the same manner as a judgment of the court in which the foreign judgment is filed. Filing a foreign-country judgment [**5]
for enforcement purposes, however, remains contingent on the judgment’s initial
recognition. See Guinness PLC. v. Ward, 955 F.2d 875, 891 (4th Cir. 1992)
(stating that “had Maryland not adopted the Uniform Recognition Act, we would
certainly agree that under Maryland law the Uniform Enforcement Act is
inapplicable to a judgment of a foreign country…we see no persuasive reason to
conclude that the Uniform Enforcement Act is not applicable to a foreign country
judgment once such judgment has been found to be entitled to recognition under
the Uniform Recognition Act”). B. Nonrecognition of a Foreign Judgment Irrespective of the procedure, the Recognition Act lists mandatory and discretionary grounds for non-recognition. Section 10-704(b)(2) states that a foreign judgment need not be recognized if “the cause of action on which the judgment is based is repugnant to the public policy of the State.” Case law illustrates that United States courts have refused to recognize foreign judgments based on public policy grounds. In Laker Airways v. Sabena Belgian World Airlines, 235 U.S. App. D.C. 207, 731 F.2d 909, 931 (D.C. Cir. 1984), [**7] the court stated that it “is not required to give effect to foreign judicial proceedings grounded on policies which do violence to its own fundamental interests.” In Tahan v. Hodgson, 213 U.S. App. D.C. 306, 662 F.2d 862, 864 (D.C. Cir. 1981), the court stated that the “requirements for enforcement of a foreign judgment expressed in Hilton are that … the original claim not violate American public policy…that it not be repugnant to fundamental notions of what is decent and just in the State where enforcement is sought.” Although principles of comity,
defined by the Supreme Court as “the recognition which one nation allows within
its territory to the legislative, executive, or judicial acts of another nation,
having due regard both to international duty and convenience, and to the rights
of its own citizens or of other persons who are under the protection of its
laws”, are taken under consideration, the Supreme Court has ruled that comity
“does not require, but rather forbids [recognition] where such a recognition
works a direct violation of the policy of our laws, and does violence to what we
deem the rights of our citizens.” Hilton, 159 U.S. at 164,
193. [**8] Although the court recognizes that there is case law rejecting arguments for non-recognition of a foreign judgment based on public policy grounds, those cases are distinguishable in that they concern minor differences in statutory law and in rules of civil procedure or corporate or commercial law. See Ackermann v. Levine, 788 F.2d 830, 842 (2d Cir. 1986) (noting that “mere variance with local public policy is not [**9] sufficient to decline enforcement”). In this case, libel standards that are
contrary to U.S. libel standards would be repugnant to the public policies of
the State of Maryland and the United States. Therefore, pursuant to section
10-704(b)(2) of the Recognition Act, this court declines to recognize the
foreign judgment. n2 The United States adopted a Constitution and Bill of Rights in order to provide Americans with greater rights than previously provided under British colonial rule. As a result, laws governing libel are structured around the goal to promote free speech and press, rights, Americans fought hard to secure. Since the United Kingdom lacks a Constitution, its laws appear to provide less protection for written and verbal expression. B. Protected Speech Speech similar to the plaintiff’s statements have received protection
under the First Amendment to the Constitution and are thereby unactionable in
U.S. courts. In Hustler Magazine. Inc. v. Falwell, 485 U.S. 46, 99 L. Ed. 2d 41,
108 S. Ct. 876 (1988), Old Dominion Branch No. 496, Nat’l Ass’n of Letter
Carriers v. Austin, 418 U.S. 264, 41 L. Ed. 2d 745, 94 S. Ct. 2770 (1974) and
Greenbelt Coop. Publishing Ass’n v. Bresler, 398 U.S. 6, 26 L. Ed. 2d 6, 90 S.
Ct. 1537 (1970), the Supreme Court held that hyperbole is not actionable.
Plaintiff contends that his statements were plainly hyperbolic because they were
stated in an attempt to portray defendant’s extremist position. C. Limited Public Figure The Supreme Court in New York
Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964),
explained that a public figure must show by clear and convincing evidence that
the libel defendant published defamatory statements with actual malice. See New
York Times Co., 376 U.S. at 279-80 (articulating that constitutional safeguards
prevent a public official from recovering damages resulting out of defamatory
remarks relating to his official conduct [**14] unless the remarks
were made with actual malice or with reckless disregard of whether the remarks
were false or not); Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 511, 115
L. Ed. 2d 447, 111 S. Ct. 2419 (1991) (defining actual malice as “publication of
a statement with knowledge of falsity or reckless disregard as to truth or
falsity”). In Curtis Publishing Co. v. Butts, 388 U.S. 130, 18 L. Ed. 2d 1094,
87 S. Ct. 1975 (1967) and confirmed in Milkovich, the Supreme Court extended
this standard to a nonpublic person who is “‘nevertheless intimately involved in
the resolution of important public questions or, by reason of their fame, shape
events in areas of concern to society at large.’” Gertz, 418 U.S. 323, 336-337
(quoting Butts, at 164 (Warren, C.J., concurring in result)). See Gertz, 418
U.S. at 351 (defining a nonpublic person as one who “voluntarily injects himself
or is drawn into a particular public controversy and thereby [**15]
becomes a public figure for a limited range of issues”). n3 In the British trial, the defendant testified that he, along with his colleagues, leaked information to the West so that millions of people would hear about the political persecutions in the Soviet Union. In addition, he was responsible for foreign relations for the Human Rights Movement and was a confident to several Soviet activists such as Alexander Solzhenitsyn, Andrei Sakharov, Yelena Bonner, and Vladimir Bukovsky. Moreover, he served as a broadcaster for the BBC during the Yom Kippur War, joined several organizations, and stated that he was known by an enormous amount of people. During the
trial in England, because of British libel standards for the defense of “fair
comment”, the court never looked to the degree of fault or the accused party’s
intentions. Also, although the British court determined that the plaintiff’s use
of inverted commas around certain words may have falsely mislead a reader to
believe that the defendant actually wrote those words, the court in Masson
concluded that “a deliberate [*6] alteration of the words uttered by
a plaintiff does not equate with knowledge of falsity…The use of quotations to
attribute words not in fact spoken bears in a most important way on that
inquiry, but it is not dispositive in every case”. Masson, 501 U.S. at 517. As a
result, since there appears to be no proof that the plaintiff made the
statements with actual malice, the plaintiff enjoys the constitutional
protection for speech directed against public figures. United States District Judge |