Don’t Depend on the Embassy
The multitude of criminal defamation and lese majesté cases that has arisen in Thailand over the last few years, insofar as such cases apply to accused American persons, possibly represent clear and present danger to American persons who are by law and convention protected by the First Amendment of the Constitution of the Untied States. Whether the 2010 Speech Act does or can add further protection and recourse to counter initiatives against states and persons seen as infringing on First Amendment rights remains an unanswered question. At least two major United States agencies are involved in these issues – the Department of State and the US Judiciary.
To date, generally speaking, Thailand-based criminal defamation and lese majesté cases have been given “due concern” by the US government through the Department of State as part of its function to maintain the overall interests of the United States as they extend into the diplomatic, commercial and military cooperation spheres. At the same time, little attention, focus or effort seems to have been given to the First Amendment protections that American persons are guaranteed under the Constitution of the United States and subsequent court decisions and acts of Congress that have further strengthened and defined protections including protections against foreign states or others who file defamation suits against American persons who have exercised their First Amendment rights inside the United States but who subsequently became enmeshed in defamation suits abroad, as defendants in suits produced as a result of their legitimate exercise of First Amendment protected speech.
This is at the heart of Thailand’s self-insistence - that it maintains jurisdiction within the United States over American persons (read the 2010 Speech Act for definitions, as well as other previously published First Amendment legislation and academic papers) who exercise First Amendment rights within the United States. Over the past Thai persons and agencies have formally investigated, accused and charged such American persons with lese majesté and/or criminal defamation, as well as with violation of the 2007 Computer Crime Act, arising out of what the Thai side maintained was offensive and defamatory. Such persons have been arbitrarily arrested and imprisoned. Specifically, there was the case of royalist Thais in California who banded together, petitioned the Thai consulate and actually proceeded with charges against a fellow Thai for expression of opinion on a LA TV station. Thai police conducted an investigation, although the issue of lack of jurisdiction of the Thai state was totally overlooked.
Thai law is written so as to maintain the right to institute lese majesté or defamation offense charges against all persons no matter where they are. This kind of provision stands in direct violation and contradiction to United States laws, especially in relation to the First Amendment and exercise of free speech which permits the public to be informed of vital issues that affect public welfare. The 2010 Speech Act very clearly recognizes the propensity of many foreign governments (in this instance this commentator addresses the Thai state) to inhibit free speech and violate the rights of American persons. Five sections of the Speech Act, for example, read,
“ Congress finds the following:
(1) The freedom of speech and the press is enshrined in the first amendment to the Constitution, and is necessary to promote the vigorous dialogue necessary to shape public policy in a representative democracy.
(2) Some persons are obstructing the free expression rights of United States authors and publishers, and in turn chilling the first amendment to the Constitution of the United States interest of the citizenry in receiving information on matters of importance, by seeking out foreign jurisdictions that do not provide the full extent of free-speech protections to authors and publishers that are available in the United States, and
suing a United States author or publisher in that foreign jurisdiction.
(3) These foreign defamation lawsuits not only suppress the free speech rights of the defendants to the suit, but inhibit other written speech that might otherwise have been written or published but for the fear of a foreign lawsuit.
(4) The threat of the libel laws of some foreign countries is so dramatic that the United Nations Human Rights Committee examined the issue and indicated that in some instances the law of libel has served to discourage critical media reporting on
matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work. The advent of the internet and the international distribution of foreign media also create the danger that one country's unduly restrictive libel law will affect freedom of expression worldwide on matters of valid public interest.
(5) Governments and courts of foreign countries scattered around the world have failed to curtail this practice of their courts, and foreign libel judgments inconsistent with United
States first amendment protections are increasingly common.”
It is clear, then, that the intent of the United States Congress and the President in passing and signing this bill into law that First Amendment rights of American persons, as exercised in the United States, shall be protected despite initiating of foreign defamation suits abroad – which seems to also cover lese majesté charges and allegations.
Based on the above, and on the limited intervention that any US Embassy or consular official can provide to Americans abroad who are in distress because of having exercised their First Amendment rights within the United States – as defined by various laws and decisions on free speech – it seems wise to pursue immediate petition to one’s own congressional representatives, local media where those representatives hold office and where the accused resides, to raise the issue of First Amendment interference by foreign powers. Thus it is not the relevant Embassy or consulate that should be resorted to for relief and protection, but the accused’s own congressional representatives, senators and local media in those congressional districts, and to notify friends and family in the United States to permit letter writing and telephone campaigning to bring pressure to bear.
For the accused in Thailand this would entail some sort of coordination with a local coordinating representative to initiate communication with relevant congressional representatives and/or district court officials (if judicial resource is possible and desired) to begin suit against the foreign interests perceived as infringing on the First Amendment rights of Americans who may physically overseas but who exercised their protected rights within the United States.
To this end, anyone interested in following up on or further discussing this matter, please contact me at email@example.com We need to work together to resolve this wrongful series of laws Thailand maintains, and for those of us who are American persons, we must jointly address these injustices by the Thai state, as the diplomatic corps does not have the portfolio to do so.