Brazil Threatens Americans' Free Speech

Rachel Ehrenfeld

9/30/2009 12:01:00 AM - Rachel Ehrenfeld

Americans writers' free expression is under attack by foreign courts.

In the most recent assault, a Brazilian widow is suing an American reporter in a Brazilian court for allegedly defaming the entire nation of Brazil. She claims Joseph M. Sharkey, a New Jersey - based freelance travel columnist for the New York Times, offended the "dignity" of Brazil by criticizing its incompetent air-traffic control on his blog. Moreover, she claims that under Brazilian law, an "insult" to Brazil is also a personal insult to her as a Brazilian citizen.

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The lawsuit was filed by the widow of one of the 154 victims who died in a mid-air collision of the Brazilian Gol Transportes AĆ©reos Flight 1907 with a U.S. business jet over the Amazon on September 29, 2006. All 154 passengers on the Brazilian aircraft died; the seven passengers on the American jet survived.

Joe Sharkey was one of the lucky seven survivors on the plane, which made an emergency landing in the Amazon in Brazil. Upon his return to the U.S., Sharkey published a front-page article in the New York Times about the disaster, and told his story on major national TV and radio outlets.

The Brazilian authorities detained the American survivors for lengthy interrogations, and immediately criminalized the accident, assigning blame to the American pilots. They proceeded to prosecute - in abstentia - the two American pilots for homicide.

In response, Sharkey published a blog, which argued against the scapegoating of two innocent American aviators in an atmosphere of hysterical anti-Americanism, and criticized Brazil's attempt to cover up the real problems in its air space over the Amazon.

Sharkey's blog, which is the putative subject of the lawsuit against him, had a major role in sorting out the truth and pressuring the Brazilian judge to release the American pilots who were held for two months. In fact, Sharkey was proved right when the United States National Transportation Safety Board issued a report in December 2008 concluding that systemic and operational faults in Brazilian air-traffic control over the Amazon were the probable cause of the collision.

Sharkey was sued for defaming Brazil late last year, but only received an official copy of the complaint, written in Portuguese, on September 16.th In the meantime, however, the Brazilian court proceeded with the lawsuit, and it is expected that he will be convicted.

If convicted, Sharkey would be ordered to pay $500,000 to the Brazilian widow and publish apologies to the Brazilian nation in major international newspapers and media outlets - a major financial undertaking.

Had Sharkey resided in New York state, he would have nothing to fear. In May 2008, New York was the first state to pass the Libel Terrorism Protection Act, shielding New Yorkers from foreign libel judgments. Illinois and Florida passed similar laws and in California, the governor is expected to sign a free speech protection bill into law by the end of this month.

Alas, Sharkey lives in New Jersey. Although the New Jersey Senate unanimously passed a similar bill (S.1643) sponsored by Sen. Loretta Weinberg, it remains enmeshed in a lengthy approval process by the legislature.

But Joe Sharkey and his family can be saved from the financial ruin they are likely to face from the Brazilian libel suit, if the U.S. Senate promptly passes the Free Speech Protection Act 2009 (S.449 ).

The bi-partisan Free Speech Protection Act 2009 is sponsored by Senators Arlen Specter (D-PA), Joseph Lieberman (I-CT), Charles Schumer (D-NY), and Ron Wyden (D-OR). The bill is widely supported by major writers' and publishers' organizations in the U.S. A less protective bill proposed by Rep. Steve Cohen (D-TN) already passed the House.

The Free Speech Protection Act will defend Americans' First Amendment rights from foreign libel judgments that do not provide protection similar to the U.S. Constitution, and will allow the deterrent of countersuits for damages. The law will ensure that U.S.-based journalists, researchers and publishers no longer need to fear the pernicious threat of foreign libel judgments, and will be able to freely investigate and report on matters of national and international significance. Congress should pass the Free Speech Protection Act without delay.