Why does Sean Penn’s lawyer probably wish Lee Daniels was English?

Today, media outlets reported that actor Sean Penn has sued Lee Daniels, actor, director, producer and creator of the hit TV series, Empire, for defamation.  The gist of Penn’s claim is that Daniels falsely accused Penn of hitting women by making the statement that fellow actor Terence Howard, star of Empire who has been accused of domestic violence on several occasions, “ain’t done nothing different than Marlon Brando or Sean Penn.”

Despite the U.S.’s reputation for being plaintiff-friendly and lawsuit-mad, we’ve also got a reputation for – and a constitutional provision allowing for – big mouths.  The First Amendment’s broad protection of freedom of expression essentially allows a defendant to make derogatory false statements about public officials and public figures, like celebrities, without legal consequence, unless the plaintiff can prove that the statement was made with “actual malice,” which requires proof, by clear and convincing evidence (not by a mere preponderance of the evidence), that the defendant knew that the statement was false or was made with reckless disregard for the truth.

In English courts, the standard of proof for defamation is lower. A derogatory statement is presumed to be false, and to be exonerated, the defendant must prove the statement true or that it is an honest opinion. Obviously this is  a more difficult standard to meet than the U.S. standard, particularly for journalists who may be unwilling to reveal sources.

If Lee Daniels were living in Europe and had made the statement to an English newspaper, we probably would have seen Penn’s suit filed in England.

But there’s a catch. Generally, an English judgment can be enforced in the U.S.  However, the U.S. SPEECH Act (Securing the Protection of Our Enduring and Established Constitutional Heritage Act), signed into law by President Obama in 2010 bars the enforcement of foreign judgments that do not meet U.S. free-speech standards.  So, if Penn’s only hope for collecting the English defamation judgment would be in the U.S., it wouldn’t be helpful for him to obtain an English judgment.  On the other hand, if Daniels had significant assets in the U.K. that were hard to move out of the U.K. (like real estate), an English judgment would be easier to enforce.

My guess is that if Lee Daniels had assets in the U.K. last week, he doesn’t this week – just to play it safe.