I am already seeing law firm marketing from London-based Online Safety Act 2023 (“OSA”) compliance practices about the 4chan v. Ofcom case.

“Engagement with Ofcom is critical!”

“Engagement will demonstrate you are willing to work with Ofcom and potentially lessen the impact of a financial penalty!”

For an American target, I disagree.

1. Scoreboard

First, how much of 4chan’s fine has Ofcom collected again?

2. The Opinion

Second, my read of the 4chan case – as one who represents American speakers – actually cuts the other way.

Yes, the Court ruled for Ofcom on the threshold immunity motion. Ofcom is a UK statutory corporation that, at least for domestic UK audiences, makes a pretty big deal about being an “independent regulator” and not being taxpayer-funded or part of the government.

My clients took Ofcom at its word, and sued it, following which Ofcom put in a great deal of effort to demonstrate that it was not, in fact, independent from the British state at all, including getting the now-defunct DSIT department to confirm in writing that the ostensibly “independent regulator” is in fact anything but, describing Ofcom as a “central government” entity and public authority. Ofcom prevailed on this point, which may have won Ofcom this motion, but it also will make it much more difficult for Ofcom, in the future, to present a credible enforcement threat to an American.

I explain that point in greater detail below, but before getting to that, it is perhaps useful to explain why this lawsuit was brought in the first place.

4chan had asked the Court to issue a declaration confirming that Ofcom’s e-mailed orders into the United States (1) were invalid under U.S. private international law rules on service of process and, (2) if and only if service was validly performed (and for avoidance of doubt it was not), whether U.S. judicial recognition of those e-mailed orders would violate the First Amendment of the United States Constitution.

While the Court did not issue that declaration, finding that it did not have jurisdiction to hear the case on account of Ofcom’s status as a sovereign instrumentality of the United Kingdom, it nonetheless appeared to go out of its way, in obiter dicta, to let readers know anyway that in its view there exists a reasonably robust, if imperfect, American defensive shield that foreign censorship orders that would violate the Constitution are unlikely to overcome, where that dispute is within a U.S. court’s jurisdiction to hear.

For my non-lawyer readers, obiter dicta is a legal term of art – Latin for “said in passing” – used to describe a judicial opinion, issued from the bench, that is not required for the disposition of the case before the court, but is nonetheless of persuasive value to judges evaluating similar cases in the future.

The Court’s comments, obiter, accomplished most of what my clients had hoped to achieve with the declaration they sought. The 4chan v. Ofcom dispute was always about much more than just one website and just one enforcement action. At its core, this case was about obtaining judicial clarity with respect to the problem of foreign censorship that directly targets Americans in America, not just for my clients, but for every American citizen and company that might be affected by Ofcom’s orders, or the orders of similar censorship regulators across the world, seeking to enforce regulations that purport to control American speech on the global Internet. There is virtually no precedent anywhere in the annals of American law which is directly on point for this particular problem.

Foreign governments sending Americans regulatory correspondence to control speech that is published wholly and exclusively on American soil is a novel phenomenon, and something that simply was not done at scale until Ofcom started doing it in early 2025. At that time, as the OSA started to come online, Ofcom attempted to assert its jurisdiction over our client. We disagreed, and thought the best way to resolve that disagreement was to ask a U.S. federal court to rule whether British censorship power, via the methods employed by the OSA, had any binding force in the United States.

Hence, we filed an action for a declaratory judgment in the federal district court for the District of Columbia. Per our opposition brief (docket):

This lawsuit seeks a legal declaration and determination that will, as a practical matter, confirm that this strategy will not and cannot work against Americans. The legal authority to conscript Americans to perform censorship does not exist – and cannot, because the First Amendment to the Constitution prohibits it.

Specifically,

All Plaintiffs seek in this action is a declaration that [Ofcom’s] Section 100 Orders, transmitted by e-mail, did not effect valid service in the United States.

That’s it. The sovereign immunity issue was not the point of the case, and not the question we sought to answer; sovereign immunity was simply a threshold issue which was an obstacle to a U.S. court providing that answer on the record.

The purpose of Ofcom’s defense, we presume, was to prevent that record from being created, as a judicial decision striking down their orders in the United States would mean that Americans with no UK nexus would, correctly, begin to view compliance with Ofcom’s orders as strictly voluntary.

Historically, the American legal system doesn’t get many chances to deal with cross-border attempts to enforce speech judgments; the SPEECH Act (28 USC § 4101-4105) has not got a ton of mileage on it, and in other cases not pertaining to defamation, it is very rare that these things ever find their way into an American courtroom. Part of the reason for this is the deterrent function of the SPEECH Act and the First Amendment; when prospective foreign plaintiffs suspect (or, even better, know) their writs won’t travel to America, they will, rationally, not choose to domesticate those orders here.

Foreign censorship orders are seen by the U.S. legal system even less frequently – at least, historically. These days, foreign censorship demands enter the United States on a daily basis, from a wide array of countries including the United Kingdom, France, Brazil, Russia, and many more. But, despite the increasing volume of this correspondence, due to the sovereign nature of the senders, our courts have, formally, heard hardly anything on the topic of recognition of foreign speech penalties since Yahoo! v. LICRA in 2006 – the meaning of which was muddled on appeal, and the speech-related components of which were obiter dicta because the 9th Circuit tossed the case on jurisdictional grounds, much as the D.D.C. did with 4chan (but where Yahoo! concerned personal jurisdiction and minimum contacts, 4chan concerned subject-matter jurisdiction and sovereign immunity).

Accordingly, the Court in 4chan is the first American judicial decision to have addressed the question of enforcing foreign non-defamation judgments that offend the First Amendment in some time.

Turning to the relevant part of the Court’s opinion in 4chan on unconstitutionality:

Because Plaintiffs represent that they have “no presence, infrastructure, or operations abroad,” Pls.’ Opp’n at 5; Compl. paras. 20, 24, that likely means enforcing any judgment in the United States. At that point, Plaintiffs could avail themselves of the protection of American courts.

Unless Ofcom is prepared to sail a British invasion fleet here and land ground troops, enforcement would indeed have to proceed through American courts. Which presents the following problem for Ofcom:

American courts generally decline to enforce foreign judgments that violate the United States Constitution, if indeed Plaintiffs are correct in their constitutional claims. See, e.g., Matusevitch v. Telnikoff, 877 F. Supp. 1, 4 (D.D.C. 1995) (refusing to enforce a British judgment because it contravened the First Amendment and was therefore “repugnant to the public policies of the State of Maryland and the United States”)[.]

There is no question in my mind, having examined what the OSA requires (and the manner in which it requires it) and what the First Amendment protects, that Plaintiffs are quite correct in their constitutional claims. It is unfortunate we were unable to have that fight on the merits.

The Court then proceeded to address American penal exception/revenue rule jurisprudence, which it did sua sponte as this issue was not briefed by either party in this case:

Finally, at the risk of gilding the lily, to the extent any foreign judgment against Plaintiffs were penal in nature, Plaintiffs may find a receptive audience before American courts regardless of the judgment’s compatibility with the United States Constitution. That is because American courts are not necessarily required to enforce foreign penal judgments[.]

Of course, I don’t know why Judge Contreras chose to include this surplusage in his opinion; that is presumably known only by him and his clerks. It does, however, replace the he-said she-said of “Byrne & Storm P.C. says one thing and Ofcom says another” that, by now, I’m sure is getting quite boring among British and American lawyers following this issue, with something far more interesting and useful: an actual judicial opinion, made from the bench, stating the principle in a case where the issues are directly on-point to the current worldwide debate over “online safety” and which could be reconsidered in the case of any foreign censorship order that may enter the United States, from whatever foreign state sees fit to send one. (Or send 197, as Ofcom has done.) I certainly hope this opinion will enlighten other Americans who may be contemplating refusing foreign censorship orders.

An obiter dictum in a district court opinion is, of course, of zero precedential value and is merely persuasive. The far better outcome would be for Congress to recognize the severe chilling effect of Ofcom’s letters on American speech and to advance a shield bill, like the GRANITE Act or the HOMEFRONT Act, that would make the current judge-made shields categorical and absolute. Proposals like these would give American speakers (a) absolute certainty that American courts would protect their rights from foreign censors, in all cases and (b) the right to punch back in an American courtroom and get a merits ruling when this censorship is attempted, to deter the foreign threats that existing American free speech doctrine has, quite clearly, failed to deter. Whether we get a shield law is, at this point, a matter for Congress and, ultimately, the President.

Speaking of Congress, the Court did not mention either of the GRANITE or HOMEFRONT bills (it would be highly irregular if it had).

The Court did address our contention that Congress could not have intended to

“[give] Ofcom the right to inject itself directly into the heart of the United States’ vibrant economy and run roughshod over the rights of American citizens . . . by threatening Plaintiffs with fines and arrests, all the while remaining utterly immune from the jurisdiction of this Court.”

The Court’s reply was that this is a matter for Congress:

Congress could, if it wished, subject foreign governments and their instrumentalities to suit in the United States, at least where doing so would not offend the United States Constitution… Congress has chosen, however, to do the opposite. It has shielded foreign governments from suit in American courts as “a matter of grace and comity.” Republic of Hung. v. Simon, 604 U.S. 115, 118 (2025) (quoting Rubin v. Islamic Republic of Iran, 583 U.S. 202, 208 (2018)). That choice is no doubt motivated in part by a desire for reciprocity. See Bolivarian Republic of Venez. v. Helmerich & Payne Int’l Drilling Co., 581 U.S. 170, 179 (2017). Congress hopes that foreign countries will likewise not hail the United States and its instrumentalities into their courts.

GRANITE and HOMEFRONT adopt different approaches to the sovereign immunity questions that were operative in the 4chan case. GRANITE, like the SPEECH Act, provides for U.S. victims of foreign censorship to sue foreign censors for a declaratory judgment, and a targeted, novel, and narrow exception to the Foreign Sovereign Immunities Act to allow such actions to proceed; whereas, HOMEFRONT calls for much broader disapplication of sovereign immunity doctrine against foreign censorship (“Notwithstanding chapter 97”) and includes more aggressive remedies language including declaratory and injunctive relief, attorney’s fees, and statutory damages. Congress will, as it considers proposals like the GRANITE Act and the HOMEFRONT Act, likely be running for itself a comity analysis very similar to the one outlined by the Court.

Finally, the Court mentioned the SPEECH Act:

Congress has even spoken directly to Plaintiffs’ concerns. It enacted the SPEECH Act to prevent American courts from “recogniz[ing] or enforc[ing] a foreign judgment for defamation” unless the judgment is consistent with the First Amendment. 28 U.S.C. § 4102(a). The law defines defamation broadly to encompass “any action or other proceeding for defamation, libel, slander, or similar claim alleging that forms of speech are false, have caused damage to reputation or emotional distress, have presented any person in a false light, or have resulted in criticism, dishonor, or condemnation of any person.”

There is only one provision of the Online Safety Act 2023 that, in my view, clearly triggers the SPEECH Act’s shield: the false communications offence contained in Section 179. This is customarily enforced by law enforcement and not by Ofcom. You could also make an argument that Section 127(2) of the Communications Act 2003 would trigger SPEECH Act protections. This, too, is customarily enforced by law enforcement and not by Ofcom. One could argue that attempt by Ofcom to punish an American on the basis of hosting speech falling into any of those categories might also trigger the SPEECH Act’s shield. Ofcom has not, as yet, appeared to get that granular with its enforcement or focus on what the UK considers criminally offensive speech in its enforcement actions, based on what I have observed.

This is why we mentioned the SPEECH Act in our complaint, but the SPEECH Act was not central to the dispute or the Court’s holding. The declaration we sought pertained to the information demands under Section 100 of the OSA which sought to compel 4chan to produce a so-called “risk assessment report” fessing up to violations of the OSA, with a view to using the content of that report to direct 4chan to conduct censorship of its website to avoid a fine, and the fine for refusing to do so. This is why the SPEECH Act was not raised in our opposition brief, as the court observed.

There is no applicable statutory shield like the SPEECH Act that would be applicable to much of the rest of the OSA; the GRANITE Act and HOMEFRONT Act bills are the right solution to this problem and would, if enacted, block the OSA to the extent that recognizing it in the United States would violate the United States Constitution, as most of the OSA would.

The Court appears, at least to me, to have made it fairly clear that Congress has the freedom to legislate in this area, if it chooses.

3. Key Takeaways

Summing up, after a year of fighting, Ofcom “won” the dismissal.

One wonders if the victory is pyrrhic.

Apart from the obvious point that Ofcom has been burning cycles, money, reputation, and political capital on American targets which are beyond its jurisdictional reach, Ofcom’s orders sent into the United States – of which the orders it sent to 4chan are by far the most widely known and read – have offended the American political class so gravely that an American law reform campaign mounted in reply has seen no fewer than 6 shield bills introduced or filed, and 1 ALEC national model policy adopted, during the pendency of this case. This has included, in the last three weeks, two new bills in the U.S. House of Representatives and one new state bill pre-filed in New Hampshire.

By way of comparison, it took the SPEECH Act four years to find its way from a live dispute in an English court to a state house (in the form of the New York Libel Terrorism Protection Act), and five years to find its way to the United States Congress. The American sovereign response to Ofcom – and numerous other foreign censors just like it – is moving much more quickly than that. Ofcom issued its first fine under the OSA, against 4chan, in October 2025; following that action, the first state shield bill, the Wyoming GRANITE Act, was introduced and passed through one chamber of Wyoming’s state house within four months, and two federal bills were introduced in less than a year.

In all cases, these bills were developed to protect Americans from foreign censors’ orders. In some cases, these bills even propose to allow Americans to strike back in state or federal court. Representative Davidson even referenced Ofcom by name, citing the 197 known orders Ofcom has sent into the United States, when introducing his proposal, the HOMEFRONT Act, which (as mentioned above) would include a broad disapplication of the FSIA, plus an array of remedies. This is occurring amid widely-reported tensions between the U.S. and the UK at the diplomatic level over perceived targeting of American speech by Ofcom.

From an enforcement perspective, Ofcom’s status as a sovereign instrumentality is something of a poisoned chalice too; while it removes Ofcom from the blast radius of the instant lawsuit, the arguments Ofcom has advanced to raise its immunity also make future extraterritorial recognition of its orders in the U.S. highly doubtful, under the very constitutional and penal judgments doctrines also raised by the Court – in the case of the latter, sua sponte and “at the risk of gilding the lily[.]”

After all that, a careful reader could be forgiven for drawing the conclusion that unconstitutional foreign censorship orders – including, presumably, Ofcom’s – are really quite unlikely to be enforceable in the United States.

Keep in mind, the only remedy 4chan sought in this action was a declaration that Ofcom’s orders were unenforceable, due to the United States Constitution and U.S. private international law rules. The Court, given its chosen disposition of the case, couldn’t give us that declaration, and didn’t.

It could hint in that direction obiter, and did.

It’s not exactly what we asked for, but it’s pretty close. While not the explicit declaration that would provide my clients with absolute certainty in their position, one we hoped a merits ruling would provide, the parties to this case were but two of what are now known to be hundreds of American targets of Ofcom’s orders, all of whom will be reading this opinion to see what it says. It is also possible that 4chan will be considered by the Court in Trump Media v. De Moraes, currently pending in the Middle District of Florida, which raises similar issues to 4chan and will likely be decided in the near future.

From the perspective of a legal advisor, the Court’s opinion should significantly deflate Ofcom’s extraterritorial bluffing in the eyes of American targets. A merits ruling, of course, should have provided a higher – formal – degree of certainty on the state of U.S. law to other U.S. companies than the dicta we actually got (although the merits ruling would almost certainly have been appealed, risking reversal and a repeat of Yahoo! with a muddle at the appellate level). Given (a) the general state of U.S. law before 4chan and (b) the degree of care taken by the Court here to communicate that a finding on immunity was not a license for Ofcom to enforce its writs on American shores, it would require a very credulous and rigid lawyer indeed to conclude, today, that Ofcom’s e-mailed letters and fines have much purchase on a U.S.-only target with no assets or undertaking in the UK that is willing to accept UK-side consequences, e.g. an access restriction order, as the price of freedom.

Suffice it to say, a federal shield law would resolve any residual ambiguity once and for all, and embolden Americans to stand up for their free speech rights as well as the free speech rights of their users. Congress should pass a federal foreign censorship shield law at the earliest opportunity. Both the GRANITE Act and the HOMEFRONT Act would do the job. Until Congress sees fit to enact a shield law and amend the Foreign Sovereign Immunities Act, Americans will simply have to endure these continuing threats of fines and imprisonment, for constitutionally protected speech, transmitted over the Internet across our national borders.

These threats are inconsistent with our laws, our Constitution, and our American way of life, and are directed at hundreds of American companies with hundreds of millions of American users.

I am very grateful to the Court for its reasoned decision as well as its opinions on the enforceability of foreign judgments generally, as this is something many foreign censors, Ofcom included, have hitherto publicly disputed. I trust these questions will be somewhat less disputed going forward.

What foreign censors do with this information is up to them. Perhaps they will reconsider whether harassing Americans is worth their time and energy. Being a simple country lawyer from Connecticut, I have a couple of ideas. One idea I had is that, every time a foreign censor writes to one of this law firm’s clients with an unconstitutional order, we will respond, point to this opinion, possibly blind copy the U.S. government (as we have been known to do from time to time), tell that foreign censor our unambiguous view on what American law actually is, and ask the foreign censor if it would be so polite as to stop attempting to trample on the civil rights of American citizens.

I would have to double check with my clients, but I am fairly sure that “engaging with Ofcom” is not on the cards. This law firm’s clients’ civil rights are not up for negotiation or debate, and never will be.

Hopefully more hamsters, or larger rodents such as a marmot, will not be necessary.