Foreign Judgments and the Freedom of Speech: Look Who's Talking

Abstract

How do the conflicts principles adopted by the Uniform Foreign Money-Judgments Recognition Act apply in the context of constitutional principles of the dignity and primacy of the First Amendment? Resolving this problem first requires discerning the scope of the First Amendment -- what and whose speech does it protect. Second, it requires establishing how conflicts law accounts for forum law when considering foreign judgments.

Part I of this Article examines the freedom of speech protected by the First Amendment and argues that the freedom is one belonging to the American people when exercising their sovereignty. Part II reviews Bachchan v. India Abroad Publications, Inc., and the analysis that led the court to hold that the Free Speech Clause bars enforcement of an English defamation award. Part III explores the public policy exception to the recognition and enforcement of foreign judgments, and discerns two separate approaches to the exception. Part IV synthesizes the discussion of the First Amendment, Bachchan, and the conflict of laws, suggesting that Bachchan misconstrued the First Amendment, the Recognition Act, or both.

Keywords: conflict of laws, foreign judgments, First Amendment, public policy exception