Full opinion text
DECISION AND ORDER MARRERO, District Judge. TABLE OF CONTENTS Page INTRODUCTION .399 I.BACKGROUND. CO CO CO A. FACTS. CO CO CO B. THE ARGUMENTS |£- O to II. STANDARD OF REVIEW .404 III. DISCUSSION.404 A. ACTUAL CONTROVERSY.406 1. Meaning and Scope of Actual Controversy.406 2. The Actual Controversy Standard Applied.407 3. First Amendment Considerations.409 4. Intercourt Conflict and Comity.410 5. Other Case Law.413 B. PURPOSES OF THE DJA.418 1. Constitutional Dimensions.418 2. Antisuit Injunctions.420 3. Concurrent Jurisdiction .421 a. Jurisdictional Basis .421 b. Basis for Injunctive Relief.422 4. Preemptive Judgments.425 5. Unique Complexities of Public Policy.427 C. COURT DISCRETION.431 1. Resolution of the Controversy.437 2. Useful Purpose.439 3. Forum Shopping .439 4. Conflict with Another Jurisdiction .440 5. Adequate Alternate Remedy.442 a. Pendency of Another Action.442 b. Comity.443 c. Exception to Comity .446 IV. PERSONAL JURISDICTION . 447 V. ORDER .447 Plaintiff Dow Jones & Company, Inc. (“Dow Jones”) brought this action against defendants Harrods, Limited (“Harrods”) and Mohamed Al Fayed (“Al Fayed”) requesting a declaratory judgment and injunctive relief. Dow Jones seeks to preclude Harrods and Al Fayed from pursuing claims for defamation asserted in a lawsuit Harrods commenced against Dow Jones in the United Kingdom arising from the publication 'of an article in The Wall Street Journal (the “Journal”) in April of this year. Now before the Court is a motion by Harrods and Al Fayed, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(2), to dismiss the complaint. At issue is whether the federal Declaratory Judgment Act (the “DJA”) may be applied for the purpose of the judgment Dow Jones seeks, or whether, assuming the DJA were properly invoked, based on the facts presented here . the Court should exercise its discretion under the DJA to grant or deny declaratory relief. For the reasons discussed below, the motion is granted. I. BACKGROUND A. FACTS To the question “What is in a joke?”, this lawsuit gives a decidedly wooden answer: a federal case. Beyond the purported humor that gave rise to the conflict, however, he several serious questions entailing federal statutory and constitutional law, as well as issues of weighty international dimensions. The action began with an April Fool’s joke. Harrods, which, among various other commercial enterprises, operates the well-known department store of that name in London, England, issued a press release on March 31, 2002, headlined “Al Fayed Reveals Plan to ‘Float’ Harrods.” The release stated that Al Fayed, Harrods’ Chairman and effective owner, would issue on the following day an important announcement “about his future plans for the world-famous store,” including “a first-come-first-served share option offer.” Journalists seeking further comment were directed to contact “Loof Lirpa” at Harrods. In fact, “Loof Lirpa” is “April Fool” spelled backward. On April 1, 2002, the planned announcement posted on the designated website described Al Fayed’s decision to “float” Harrods by building a ship version of the store to be moored in London on the embankment of the Thames River. The announcement included a limited offer of “shares in this exciting new venture.” Persons who registered on the website by noon that day, “the first of April!”, were promised “a share certificate.” Dow Jones read the March 31 press release as purporting to announce that Harrods planned to “float shares,” i.e., a public offering of stock. It did not wait to see Harrods’ actual disclosure on the announcement date. Instead, on April 1, in the print editions of the Journal in the United States, and in the Journal’s website “WSJ.com.,” Dow Jones published an article reporting that Harrods would disclose plans that day to publicly list the company’s shares. Upon learning that Harrods’ announcement had been an April Fool’s joke, the Journal published a correction so advising its readers in an item that appeared in its April 2, 2002 print editions in the United States as well as on WSJ.com. Three days later, Dow Jones countered with a story it asserts was intended as the Journal’s own brand of wry, light-hearted humor, the article that ultimately catapulted into the conflict now before this Court. The Journal’s “Deals & Deal Makers: Bids & Offers” column on April 5, 2002 published an item entitled, “The Enron of Britain?” (the “April 5 Article”). The first sentence of the April 5 Article, which appeared in the Journal’s, United States print edition and on WSJ.com., states that: “If Harrods, the British luxury retailer, ever goes public, investors would be wise to question its every disclosure.” It then detailed the April Fool’s joke, which the story reported had been mistaken by “some news organizations” as an announcement of a plan to sell Harrods shares publicly. Dubbing the prank “[n]ot exactly Monty Python-level stuff,” the column questioned whether Harrods could “get in trouble for messing with the facts?” by issuing the bogus press announcement. At this point the lawyers entered. Promptly the face of comedy began to furrow and its smile to curl into what often becomes tragedy’s first sour frowns and snarls: incipient litigation. As the lawyers recount the tale, Harrods apparently did not see any humor in the article, and rather took umbrage from the Journal’s reference to it and Enron in the same breath. On April 10, 2002, Harrods’ director of legal affairs wrote to Dow Jones officials asserting that the April 5 Article had enraged Harrods and “caused serious damage to Harrods’ reputation worldwide” by “linking Harrods (a law abiding and historic British institution) with Enron” and thereby insinuating that Harrods “can and will act unlawfully.” The letter demanded that the Journal publish a correction and an apology in its domestic and international editions and pay Harrods “substantial damages.” It also explained that Harrods’ April Fools Day jest followed a long-standing tradition practiced in Britain by other prominent businesses that issued similar humorous press releases. Attorneys for the two sides then exchanged numerous letters and communications articulating the partiés’ respective positions. On April 15, 2002, Dow Jones responded to Harrods’ letter, denying that the April 5 Article was defamatory and asserting Dow Jones’ view that, the item was intended as humorous commentary, that the mention of Enron merely reflected “tongue-in-cheek hyperbole,” and that because there was nothing inaccurate in the report there was nothing that needed correction. Dow Jones suggested that Harrods submit a letter to the Journal’s editor for publication. Harrods replied on Arpil 18, 2002. It rejected Dow Jones’ contention that the April 5 Article was meant to be humorous as “simply an incredible, if not bizarre, assertion,” and reiterated Harrods’ demand for a published apology, warning of Harrods’ intent to commence a defamation suit in the United Kingdom if Dow Jones failed to satisfy Harrods’ demands. Dow Jones replied on April 19, 2002. It asserted that the April 5 Article contained only non-actionable opinion grounded on disclosed which could not serve as grounds for a defamation action, and repeated Dow Jones’ willingness to publish a letter to the editor if Harrods submitted one. Dow Jones next heard from Harrods’ London solicitors on May 13, 2002. The correspondence informed Dow Jones that in preparation for filing a defamation suit in the United Kingdom, Harrods requested Dow Jones to provide certain “pre-action disclosure” concerning the circulation of the Journal’s United States edition in the United Kingdom, the number of subscribers to its online edition in the United Kingdom and worldwide and the number of “hits” received on WSJ.com since April 5, 2002. The letter fixed a date of May 27, 2002 for disclosure of the requested information, after which Harrods would bring the matter to the appropriate court in London. Dow Jones construed the demand from Harrods’ solicitors for pre-action disclosures as a threat and prelude to litigation. Dow Jones did not respond to Harrods’ request for disclosure. Instead, it commenced the instant action against Harrods and A1 Fayed in this Court on May 24, 2002. With regard to A1 Fayed, Dow Jones asserts that although no threat of litigation had yet derived from A1 Fayed himself, Dow Jones believes it faces a genuine threat because, as Chairman and owner of Harrods, “A1 Fayed might well assert a claim for defamation against Dow Jones based on the April 5 Article.” Harrods proceeded to institute litigation in the High Court of Justice in London (the “London Action”) on May 29, 2002 seeking damages for libel arising out of the Journal’s publication of the April 5 Article. Harrods later filed further particulars in the London Action specifying that it also sought an injunction against continued publication of the April 5 Article. A1 Fayed is not a party to the London Action. B. THE ARGUMENTS Dow Jones argues that an action for defamation based on the April 5 Article would be summarily dismissed under federal and state constitutional law of any American jurisdiction because the publication comprises only the author’s non-actionable expression of opinion based on true statements and contains no facts capable of being proved false. By contrast, according to Dow Jones, the London Action may proceed against it under various longstanding principles of British law that are plainly antithetical to historic rules, traditions and policies established to protect free speech and freedom of the press in the United States. Under these circumstances, Dow Jones maintains that, absent intervention by this Court, in defending the London Action Dow Jones would be compelled to incur enormous expenses and divert its editors and writers from their journalistic endeavors, and to operate with the uncertainty as to whether it may continue to publish the April 5 Article or face potential liability on account of it. Accordingly, Dow Jones asks this Court to exercise its jurisdiction under the DJA to adjudicate the dispute. The judgment Dow Jones seeks would declare that any libel claim based on the April 5 Article would be insufficient as a matter of law on the grounds that the story contains no provably false statements of fact and represents only protected expressions of opinion, and that Harrods could not prove that Dow Jones acted with actual malice or gross irresponsibility in publishing it. Moreover, by reason of the running costs it would continue to incur, and the perceived threat of restrictions on its continued publication of the April 5 Article, Dow Jones requests an injunction barring Harrods and A1 Fayed from pursuing the London Action or related litigation against Dow Jones in any other forum in the world. Harrods counters that the Court lacks subject matter jurisdiction over Dow Jones’ action because: (1) declaratory judgment relief is not the proper mechanism to resolve tort claims such as the defamation action underlying the parties’ dispute; (2) Dow Jones’ action represents a forum-shopping pre-emptive first strike brought in anticipation of a suit by Harrods — the natural plaintiff in this matter— which reflects a purpose not contemplated by the declaratory judgment statute; and (3) granting declaratory judgment to prevent Harrods from enforcing any recovery it may obtain in the London Action and to bar A1 Fayed from instituting future litigation based on the April 5 Article would be improper because, on the basis of these contingent events alone, no “actual controversy” within the meaning of the DJA exists here. II. STANDARD OF REVIEW The matter now before the Court relates to Harrods’ challenge to the Court’s subject matter and personal jurisdiction pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(2) respectively. Ordinarily, when presented with such a double-barreled jurisdictional attack, the Court should determine the subject matter challenge first. Although this rule does not reflect an “unyielding jurisdictional hierarchy,” and reasons of judicial economy may suggest a different sequence in particular circumstances, the Court finds that in the instant case efficiency is better served by adhering to the customary practice. Accordingly, the Court will address the subject matter issue first. Rule 12(b)(1) challenges to subject matter jurisdiction are generally regarded as following two forms. The motion may attack either the facial sufficiency of the pleadings in the complaint or the existence of subject matter jurisdiction in fact, irrespective of the substantive causes of action asserted in the pleadings. In a facial challenge, the court accepts as true the uncontroverted factual allegations in the complaint. By contrast, in connection with a factual challenge the court’s review is not confined to the pleadings, but may examine extraneous evidence submitted with the motion and make any findings of fact necessary to determine the existence of subject matter jurisdiction. In that event, the court is not obligated to accord presumptive truthfulness to the allegations of the complaint. Rather, it may weigh the evidence on the record accompanying the Rule 12(b)(1) motion, or hold an evidentiary hearing, and decide for itself the merits of the jurisdictional dispute. Finally, “[t]he burden of proving jurisdiction is on the party asserting it.” Here, the underlying dispute does not entail Dow Jones’ affirmative statement of a substantive cause of action. The Court construes Harrods’ challenge to constitute an attack on the factual existence of subject matter jurisdiction under the DJA rather than a facial challenge to the sufficiency of the pleadings. Accordingly, the Court will consider the various affidavits and other documents submitted by both sides as these relate to the jurisdictional dispute and make factual findings as necessary to determine whether subject matter jurisdiction does exist. III. DISCUSSION This case encompasses the bounds, contours, purposes and interstices of the DJA. That statute is an enabling law which confers discretionary jurisdiction upon federal courts rather than an absolute right upon the litigant invoking the remedy. Specifically, the statute provides that in a case of an “actual controversy” within its jurisdiction, “[a] federal court may declare the rights and other legal relations of any interested party seeking such declaration....” The DJA remedy was designed as a means to facilitate early and effective adjudication of disputes at a time when a controversy, though actual, may still be incipient, but before it expands into larger conflict. The action generally commences at the instance of a party facing potential liability to another who may have an accrued claim at that time but has not yet commenced coercive litigation to pursue relief. By enabling the parties to narrow the issues and differences and expedite resolution of their conflict, the DJA procedure helps to minimize the prolongation of disputes, reduce the risk of loss and avoid the unnecessary accumulation of damages. Declaratory relief thus not only functions as an adjudicatory device but serves a preventive purpose as well. It permits the court in one action to define the legal relationships and adjust the attendant rights and obligations at issue between the parties so as to avoid the dispute escalating into additional wrongful conduct. In this manner, the statute can avert greater damages and multiple actions and collateral issues involving not only the original litigants but potentially other third parties. So employed, the remedy promotes several utilitarian values in the adjudication of disputes: speed, economy and effectiveness. The Second Circuit, in Beacon Const. Co., Inc. v. Mateo Elec. Co., Inc., has recognized these efficiencies as the primary purposes of the DJA. There, the Circuit Court noted that the statute was intended to “ ‘afford a speedy and inexpensive method of adjudicating legal disputes without invoking the coercive remedies of the old procedure, and to settle legal rights and remove uncertainty and insecurity from legal relationships without awaiting a violation of the rights or a disturbance of the relationships.’ ” The motion before the Court raises three basic issues that arise from the plain language and stated purposes of the statute, and from a number of guiding principles that govern the applicability of the remedy: whether the action as described in the pleadings (1) raises an “actual controversy”; (2) falls within the scope of cases for which the DJA was intended, and (3) presents circumstances sufficiently compelling to warrant exercise of the Court’s discretion to grant or deny the relief requested. These issues are considered in turn. A. ACTUAL CONTROVERSY 1. Meaning and Scope of Actual Controversy As a threshold issue, DJA actions are justiciable only in cases in which an “actual controversy” exists. The relevant inquiry for this prerequisite is coextensive with the analysis applicable to the “case or controversy” standard embodied in Article III of the United States Constitution. To this end, the Supreme Court has reinforced that the DJA does not alter the essential predicates for the exercise of federal jurisdiction embodied in the prescription that “ ‘[t]he judicial power does not extend to abstract questions’ and that ‘[c]laims based merely upon ‘assumed potential invasions’ of rights are not enough to warrant judicial intervention.’ ” This requirement circumscribes federal, jurisdiction to real conflicts so as to preclude the courts from gratuitously rendering advisory opinions with regard to events in dispute that have not matured to a point sufficiently concrete to demand immediate adjudication and thus that may never materialize as actual controversies. Recognizing the practical difficulties associated with fashioning a precise test to distinguish in every case between an abstract, hypothetical or academic question and a real and substantial controversy, the Supreme Court has acknowledged that the difference is necessarily a matter of degree. In Maryland Casualty Co. v. Pacific Coal & Oil Co., the Court offered as guidance that [b]asieally, the question in each case is whether the facts alleged, under the circumstances, show that there is a substantial controversy, between the parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. The Supreme Court has stressed not only that the controversy must be sufficiently real and immediate, allowing specific and conclusive relief, but that it must also be ripe for adjudication. In Wycoff, the Court instructed that “[t]he disagreement must not be nebulous or contingent but must have taken a fixed and final shape so that a court can see what legal issues it is deciding, what effect its decision will have on its adversaries, and some useful purpose to be achieved in deciding them.” In a similar vein, the Second Circuit, in Muller v. Olin Mathieson Chem. Corp. reaffirmed that the measure of an actual controversy is necessarily relative and demands corresponding flexibility; it instructed that “[t]he difference between definite, concrete and substantial controversies which are justiciable, and hypothetical, abstract, or academic ones which are not justiciable, is one of degree, to be determined on a case by case basis.” Accordingly, a touchstone to guide the probe for sufficient immediacy and reality is whether the declaratory relief sought relates to a dispute where the alleged liability has already accrued or the threatened risk occurred, or rather whether the feared legal consequence remains a mere possibility, or even probability of some contingency that may or may not come to pass. The “actual controversy” standard is conceptually linked to the doctrine of ripeness, requiring that the claim of threatened injury be of direct and immediate impact and the injury sufficiently likely to occur, so as to render the issue appropriate for judicial review. In Laird v. Tatum, the Supreme Court elaborated on this prerequisite. Reversing a determination that a sufficient controversy existed in an action for declaratory relief, the Court noted that allegations of a “subjective chill” on the exercise of First Amendment rights “are not an adequate substitute for a claim of specific present objective harm or threat of a specific future harm.” 2. The Actual Controversy Standard Applied In the light of this overview of relevant principles, the Court is not persuaded that under the circumstances presented here Dow Jones has met its burden to sufficiently demonstrate the existence of an actual controversy. Dow Jones contends the April 5 Article is non-actionable under American First Amendment jurisprudence, and hence that any judgment obtained in the London Action pursuant to foreign libel law principles repugnant to United States constitutional doctrine and public policy would be unenforceable in American courts. Thus, under Dow Jones’ theory, an actual controversy exists by reason of the mere potential that Dow Jones may be exposed to liability in the London Action and that its being compelled to defend a lawsuit that would be found meritless in any court in the United States violates Dow Jones’ First Amendment rights. On this basis, Dow Jones asks' the Court to declare unenforceable, not only in the United States and the United Kingdom but anywhere else in the world, any libel judgment Harrods may obtain against Dow Jones in the London Action grounded on the April 5 Article. The Court cannot accept Dow Jones’ proposition. Even if Dow Jones’ theory that a judgment against it in the London Action would be unenforceable in most or all American jurisdictions were conceded, it does not follow that the mere prospect that such a ruling may be rendered at some indefinite point in the future raises a sufficient actual controversy within the meaning of the DJA. The Court does not find enough immediacy and reality in Dow Jones’ claim at this early stage of the London Action to warrant declaratory relief. In essence, Dow Jones’ complaint is grounded on a string of apprehensions and conjectures about future possibilities: that the court in the London Action will find a basis to assert jurisdiction and will recognize the pleading of a sufficient claim; that an adverse ruling on the merits may be rendered against Dow Jones; that the adjudication may award Harrods compensatory damages or enjoin Dow Jones from publishing the April 5 Article; that Harrods may seek to enforce such judgment in the United States or elsewhere; that if enforcement is sought, the judgment will be recognized somewhere. At this juncture, however, these protestations and prospects amount to nothing more than what they still are: premature concerns about contingencies that may or may not come to pass. In fact, Dow Jones cannot assert with any degree of concreteness or certainty at this point that Harrods’ claim in the London Action necessarily would prevail on jurisdictional defenses or on the merits under applicable British libel law principles. It cannot identify which particular aspects of the April 5 Article the British court may find defamatory nor which method and timeframe of publication would be held actionable. What specific relief would be granted, whether monetary or injunctive, and whether a ruling against Dow Jones would be sustained on final appeal, are all speculative questions. Whether or not Harrods would attempt to enforce a favorable judgment in the United States or elsewhere is also uncertain. Dow Jones’ own express confidence that any judgment rendered against it in the London Action would be summarily dismissed in any United States court works against its strenuous assertions that it faces a real, sufficiently direct and immediate threat of injury. In this regard, given the current posture of the London Action, the Court finds that Dow Jones’ claim of impending harm, and its fears of enforeement of an adverse judgment, are too abstract, remote and hypothetical to constitute an actual controversy qualifying for the declaratory relief it seeks. 3. First Amendment Considerations Dow Jones nonetheless contends that it is entitled to declaratory relief by virtue of the mere act of its having to defend what it considers a frivolous lawsuit in a foreign tribunal. It argues that this burden presents sufficient present harm and chilling effect on its First Amendment rights to constitute a justiciable controversy, and that this constitutional dimension elevates the stakes and should lower the threshold for finding an actual controversy, distinguishing this action from cases involving ordinary commercial disputes. In support of its proposition Dow Jones cites cases in which the Supreme Court has found it appropriate for federal courts to grant declaratory or injunctive relief barring parallel state court proceedings in which fundamental federal constitutional rights are threatened or not adequately protected. It is true that under some circumstances it is easier to satisfy the threshold of a justiciable controversy when the claim implicates First Amendment rights. However, the precedents Dow Jones’ argument relies upon, as the Supreme Court subsequently made clear, do not constitute the rule, but a rigidly narrow exception to settled doctrines. In Younger v. Harris, the Court noted: “[w]e hold that the Dombrowski decision should not be regarded as having upset the settled doctrines that have always confined very narrowly the availability of injunctive relief against state criminal prosecutions. We do not think that opinion stands for the proposition that a federal court can properly enjoin enforcement of a statute solely on the basis of a showing that the statute ‘on its face’ abridges First Amendment rights.” The Younger Court recognized that not every chilling effect on freedom of expression presents a justiciable controversy warranting extraordinary equitable relief. It found that no genuine controversy was presented with respect to parties who did not yet face prosecution under a statute alleged to infringe protected speech but who merely claimed that they “feel inhibited” in the exercise of First Amendment rights. by reason of a state law. Responding to this concern, the court observed: “[p]ersons having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs in such cases.” With respect to the defendant in Younger who actually was prosecuted, the Supreme Court found that the prospect of defending a criminal proceeding under a statute regulating speech did not amount to sufficient basis, in and of itself, to support federal injunctive relief barring the state proceeding. The “chilling effect” on freedom of expression associated with such prosecution, the Court noted, “should not by itself justify federal intervention.” Moreover, also germane to the issues Dow Jones’ claim raises here, the Younger Court stated that: “Certain types of injury, in particular, the cost, anxiety and inconvenience of having to defend a single criminal prosecution, could not by themselves be considered ‘irreparable’ in the special legal sense of that term.” And, as noted above, the Supreme Court also held in Laird that allegations of a “subjective chill” on the exercise of First Amendment freedoms are insufficient to create an actual controversy absent a concrete claim of specific present “objective” harm or threat of future harm. Under these standards, this Court, concludes that Dow Jones’ allegations of present or future harm are neither sufficiently concrete, objective or specific to support a finding of an actual controversy justifying the extraordinary relief Dow Jones seeks. 4. Intercourt Conflict and Comity The precedents Dow Jones cites in support of its argument are inapposite in other respects. Those cases allowed federal injunctions of state court proceedings under extraordinary circumstances. But they did so in the context of domestic federal-state principles under which the issuance of relief by a federal court could afford an effective, enforceable remedy. Under the Supremacy Clause and principles of federalism embedded in our constitutional structure, the federal and state systems of government, though separate, are also interconnected and interdependent in vital ways. As the Supreme Court noted in Wycoff: “State courts are bound equally with the federal courts by the Federal Constitution and laws.” Thus, final federal judgments must be given full faith and credit and conclusive effect in state courts. The circumstances are quite distinct as regards the foreign proceeding at issue here. Dow Jones insists that a real controversy exists because the relief it seeks would declare preemptively that Harrods’ cause of action in the United Kingdom would be nullified not only in the United States but, under the American “single publication rule,” “anywhere else in the world, including the U.K. itself.” On this basis, Dow Jones asks this Court, in aid of declaratory relief, to enjoin Harrods from pursuing its litigation in the London Action and every other possible forum. The Court cannot endorse such a far-reaching request. The constitutional strictures of the Full Faith and Credit Clause do not extend to international assertions of jurisdiction, especially those that the forum state may consider extravagant or exorbitant. American law contains among the most extensive mantle of rights and safeguards to guarantee and protect individual freedoms and fundamental fairness. Gauged by the rigorous standards constituting the American conception of civil liberties and due process, the legal systems of many foreign states are bound to fall short as to any given basic precept our law encompasses. Accordingly, countless occasions inevitably arise when Americans are sued in foreign tribunals by parties invoking laws that in some aspect or other may not measure up to our constitutional mark or may even do violence to public policies and principles Americans hold dear — not only those valued under the First Amendment, but under other vital protections of our jurisprudence. Dow Jones maintains that in the contemporary world, the Internet has made communications originating in the United States instantly available almost anywhere on Earth and, consequently, has rendered publishers vulnerable to the application of foreign laws regulating speech and to potential liability incompatible with American First Amendment principles. At the cusp of this momentous development, Dow Jones urges, United States courts in general, and this Court in particular, are thus uniquely poised to seize the opportunity to reinforce and enlarge the First Amendment protections American publishers enjoy so as to bar preemptively potential liability for any alleged defamation injury their commercial activities conducted in this country and transmitted through the worldwide web may cause in foreign jurisdictions. Validating this proposition would make it appropriate and commonplace for litigants to resort to federal courts under the DJA to obtain declarations of non-liability and injunctive relief whenever a party alleges that it faces even a mere prospect of a lawsuit or contingent liability in a foreign jurisdiction whose laws or procedures may conflict in some way with fundamental rights enjoyed under United States law. Thus, under Dow Jones’ hypothesis, the DJA would confer upon an American court a preemptive style of global jurisdiction branching worldwide and able to strike down offending litigation anywhere on Earth. Intriguing as such universal power might appear to any judge, this Court must take a more modest view of the limits of its jurisdiction, and offers a more humble response to the invitation and temptation to overreach. The Court finds nothing in the United States Constitution, nor in the DJA or in customary practice of international law, that comports with such a robust, Olympian perspective of federal judicial power. Dow Jones itself implicitly acknowledges a first manifest flaw in its argument. It contends that the judgment it seeks from this Court would have a direct impact and immediately end the London Action “[i]f recognized by the British court,” an eventuality Dow Jones suggests “likely would” happen. Dow Jones cites no authority for its bold proposition, other than the conclusory assertion of its London counsel. The statement is not only speculative, but strenuously contested by Harrods’ own solicitor, who questioned “on what basis it could possibly be said that an English court would recognize and apply a decision by an American Court as to whether a publication in England was actionable in accordance with English law,” and expressed doubt “that the English court would be greatly influenced by the fact that the defendant had sought declaratory relief, presumably on the basis of the American law of defamation, in New York.” In light of such divergent expressions of legal opinion on foreign law by advocates for the two parties, neither thoroughly briefed, the Court is not in a position to accept as uncontroverted fact Dow Jones’ hypothesis that the British tribunals would unquestioningly recognize a declaratory ruling of this Court as dispositive of the matters at issue in the London Action. The Court need not resolve definitively which version of English rules governing this point more closely reflects applicable law, although it better comports with this Court’s notion of common sense and the practicalities of judicial administration to find Dow Jones’ theory highly improbable. Moreover, the large contingency reflected by that prominent “IF” would apply in every other corner of the globe where Harrods might alternatively choose to litigate the events at issue in the London Action or enforce an ensuing judgment. The argument presupposes an equally doubtful premise: that every other plausible sovereign jurisdiction in this world would similarly recognize the wisdom and commendable respect that the British tribunal would exhibit if it were to honor the higher authority of American law that this Court would have proclaimed dispositive and binding, and, in an equally pliant and agreeable display of deference, likewise would bow to this Court’s presumed superior judgment. The Court cannot share Dow Jones’ ebullient faith in this prospect. Just as the Court’s professed perception of its authority to grant the relief sought here is more restrained than the vision Dow Jones’ theory tenders, the Court also harbors a skeptical view of the international recognition that would be accorded to a preemptive declaration by this Court to the effect that, because under American law a person could not be sued for a particular libel published in the United States, that party therefore could not be sued anywhere else in the world under the laws of any other country where the libel was actually published and plausibly may have caused harm. In this Court’s reckoning, the realities and practicalities endemic to international relations do not allow for placing much stock in Dow Jones’ sanguinity on this point. Any forecast of political or social consequences or even of legal expectations concerning issues on a global scale is bound to be subject to countless variables and imponderables whose vagaries, render such oracles suspect and not sufficiently meaningful as grounds for hard judgments. In fact, Dow Jones’ hypothesis finds no support in international law principles or practice. As one leading commentator observed: “Courts of foreign countries, while likely to use comity language, will be reluctant to give effect to any injunctions purporting to restrain their own citizens and transactions.” Nor is Dow Jones’ proposition likely to gain a sympathetic ear in the United Kingdom to compel a stay of the London Action in favor of the instant proceeding in this Court. Under British practice, where a plaintiff in England is the defendant in a foreign action involving the same parties and events, the courts are reluctant to stay the English proceedings. “‘The court ought not to stay a plaintiff in the courts of this country on the ground that he happens to be a defendant elsewhere.’ ” Even were this Court to grant the relief Dow Jones seeks, its judgment may not be entitled to recognition or enforcement in the United Kingdom to the extent the British courts may find it contrary to English public policy, or to constitute an effort to prevent the administration of justice for an unjust end. 5. Other Case Law Other authorities Dow Jones cites for its expansive proposition are not on point. In Yahoo!, Inc. v. La Ligue Contre Le Racismo et L’Antisemitisme, plaintiff Yahoo! sought a judgment declaring unenforceable in the United States a ruling that defendant, a French entity, had obtained from a tribunal in France. The French order directed Yahoo! not to post for sale through its online auction network accessible in France any items of Nazi memorabilia. The district court rejected defendant’s argument. It held that there was no case or controversy because the French tribunal’s order was still provisional and subject to appeal prior to any enforcement in the United States. The Yahoo! facts are easily distinguishable from those at issue here. First, the French proceeding was not an incipient lawsuit, or litigation still in its early stages, or merely a feared result that might arise from the prosecution of such a case. Rather, the declaratory action there challenged, after the fact, one consequence of an adjudication that had already been reduced to an actual official order issued by a government tribunal. Thus, the particular conduct which that judgment did or did not encompass, what the foreign tribunal ordered or did not order Yahoo! to do, as well as the specific penalties and time-frame for compliance it imposed, were all substantial, real and immediate. The effects of the French order were concrete and known to Yahoo!. In fact, Yahoo! had sought to comply with it, and the defendant had acknowledged Yahool’s substantial compliance, but had not taken steps to withdraw the action. Second, the French order explicitly extended to an American national’s activities in the United States. Compliance with the order required Yahoo! immediately to modify its business operations and the content of its expression in the United States. Third, the order specifically directed enforcement in the United States. Defendants twice used the United States Marshal’s office to serve the French order on Yahoo! in California. And the French court prescribed that the penalties assessed against Yahoo! could not be collected from YahooPs affiliate in France. Finally, the federal declaratory relief Yahoo! sought was limited to a determination that the French order would not be cognizable under the laws of the United States nor enforceable in this country. There was no indication that Yahoo! sought the federal court to bar the French court from prosecuting the action in France or from enforcing its order within any French jurisdiction. Nor was there an implicit argument that because Yahoo’s conduct was not actionable in the United States under American law, it could not be actionable at all either in France under French law, or anywhere else. In fact, the Yahoo! court underscored that these issues were not before it. Recognizing France’s sovereign prerogatives to govern affairs within its borders, the Court stated: “A basic function of a sovereign state is to determine what forms of speech and conduct are acceptable within its borders.” Thus, the practical and enforceable remedy sought in Yahoo! did not implicate judicial ambitions nor arguably extra-judicial forays and intrusions into international affairs. Nor did it place in contention the constitutional dimensions, or the worldwide ramifications for which the DJA is invoked here. Farrell Lines Inc. v. Columbus Cello-Poly Corp. is equally unavailing. Dow Jones cites that case as precedent for the proposition that in aid of declaratory relief a federal court may enjoin parties from pursuing or maintaining litigation in a foreign country. In Farrell, the litigants were parties to a commercial shipping transaction reflected in a maritime contract which contained a forum selection clause providing for United States law to govern its construction and designating New York as the venue to adjudicate any claims arising under the agreement. Plaintiff was the owner and operator of the ship and defendants the insurers of cargo damaged at sea. The goods at issue were being shipped to a recipient in the United States in a vessel owned by a United States corporation and registered in the United States, and the accident occurred in the United States. Plaintiffs declaratory judgment action sought no more than to give effect to the parties’ contractual commitments under the bill of lading’s limitation of liability, venue and choice of law provisions. The defendants, however, subsequently brought suit in Italy claiming that the Italian limitation of liability and forum selection rules applied. The court found that defendants’ challenge to the applicability of the bill of lading’s restrictions established the existence of an actual controversy. Reaching the merits, the court concluded that under federal admiralty and choice of law rules, the enforceability of the forum selection clause would be determined by United States law in accordance with the parties’ designation. Accordingly, the federal limitation of liability and forum selection governed, rendering defendants’ proceeding in Italy impermissible. The Court concluded that injunctive relief was warranted because defendants’ competing litigation in Italy was specifically intended to evade the jurisdiction of the federal court, avoid application of the contractual provisions the parties had agreed upon, and thus frustrate important public policies of the forum. The Farrell court’s judgment was fully dispositive of the controversy because it declared the relations between the parties, and their attendant rights and liabilities, applying the substantive law of the forum designated in the bill of lading. Given the contractual basis of the dispute, the conflict was immediate and real and readily determinable through declaratory relief by reference to an agreement circumscribing the legal parameters of the controversy. There was no dispute that an accident had occurred, nor that the cargo was damaged and liability existed. The United States limitation of liability either did or did not apply; the forum selection clause was or was not enforceable; defendants’ litigation in Italy was or was not inconsistent with the parties’ business arrangement. The litigation in the two separate forums was essentially the same and subject to effective resolution by a federal court vested with proper jurisdiction. No settled expectations of the litigants could have been distui’bed by the declaratory and injunc-tive relief granted by the federal court. The Farrell controversy is thus also easily distinguishable from the matter at hand. Unlike the instant case, it did not raise the delicate issue concerning potential assertions of competing adjudicatory power, nor the scope of a cause of action whose defining elements were grounded on the substantive law of a foreign nation. Clearly, effectuating an agreement containing a forum selection provision to resolve a maritime dispute cannot be equated with the far more intricate and expansive relief Dow Jones seeks in this Court, a remedy that by Dow Jones’ own argument presents constitutional and international comity implications not at issue in Farrell’s ordinary admiralty contract dispute. The governing law there was predetermined by the parties, and its application readily adjudicated the controversy. By contrast, there is no touchstone by which this Court can dispositively rule that American law should be applied in the case at hand to resolve a conflict pending in a British court involving a claim allegedly arising in the United Kingdom under English law. The Farrell court also was not called upon to extend the reach of its authority extraterritorially — as this Court is urged to do — with the desired relief being motivated by substantive choice of law reasons, so as to preclude consideration by a foreign court of an action brought by a national of the foreign country that effectively would have barred application of that nation’s own laws to a dispute properly before its courts. In sum, the Farrell court was merely called upon to give expression to the contractual intent of the parties to a controversy properly within its jurisdiction, and not to prejudge the outcome of a foreign proceeding by means of a normative conjecture ab,6ut the quality of justice that a judicial tribunal of another country, if not restrained by the intervention of an American court, would likely render, and by these means compelling the rescue of a domestic litigant from a conjured travesty of law. More compelling and germane to the action before this Court are the cases in which federal courts considered the appropriateness of granting declaratory relief and found no actual controversies in a context implicating international comity issues more analogous to those entailed here. In this regard, Basic v. Fitzroy Eng’g, Ltd. is closer on point. There, plaintiff (“Basic”) and his company (“BEE”) entered into an agreement with defendant (“Fitzroy”) for BEE to perform design and engineering services for Fitzroy in connection with the installation of a generator in New Zealand. A contract dispute arose which Fitzroy, pursuant to the agreement, took to arbitration. BEE failed to appear in the proceeding and the arbitrator entered a default order against it. Fitzroy then filed an action in. New Zealand against Basic alleging that Basic had made negligent misrepresentations that had induced Fitzroy to contract with BEE and Basic. Basic entered a limited appearance in the New Zealand action to challenge the court’s personal jurisdiction and the appropriateness of venue. While the New Zea-land action was pending, Basic filed suit in federal court in Illinois seeking declaratory judgment. The complaint asserted various grounds for relief, including that: (1) the New Zealand action was barred by issue and claim preclusion, (2) Fitzroy’s claims for negligent misrepresentation were not cognizable under Illinois law, and (3) the New Zealand action was inconsistent with American public policy. In a motion to dismiss the complaint, Fitzroy argued that the court lacked subject matter jurisdiction to grant the type of declaratory relief Basic sought. The Basic court agreed. It found no “actual controversy” in Basic’s claim that a judgment in favor of Fitzroy in the New Zea-land action would be unenforceable in the United States. Elaborating on this point the court noted: Basic seeks to have the court declare a future foreign judgment invalid and unenforceable even before Fitzroy has the opportunity to have the future judgment entered by the New Zealand court and confirmed in a United States federal court. Put another way, Basic’s act of filing the instant Complaint is an attempt to render null and void a possible future New Zealand judgment, a judgment which “may never come to pass.” The district court found Basic’s request improper and denied declaratory relief for several reasons. The New Zealand action was at a relatively early stage, awaiting an appellate ruling on Basic’s jurisdictional challenge. On this basis, a federal court’s ruling on the prospective effect, of a New Zealand ruling would be premature. Second, the court could only surmise as to the claims which would be sustained by any judgment in the New Zealand action, because in any litigation such claims are always subject to change. Third, the court concluded that granting the relief Basic requested would not serve the purpose of the DJA, in that the declarations sought would not “help him avoid imminent harm” prior to an impending injury-causing event. Finally, addressing Basic’s contentions that judgment in the New Zealand action would be inconsistent with Illinois law and unenforceable as contrary to American public policy, the court concluded that even if it made such findings, the declarations would be “worthless.” In this regard the court stated: The action brought by Fitzroy asserts violation of New Zealand law, and findings by this court favorable to Basic would, for obvious reasons, result in neither persuasive nor binding authority on the New Zealand court. The only effect of such declarations would ' be on Fitzroy’s ability to enforce the foreign judgment in the United States. Yet, such a determination by this court at this juncture would be premature. Assuming that Fitzroy prevails on the [New Zealand] action, Basic will have the opportunity to argue the same issues raised in this Complaint to the federal district judge to which any enforcement proceeding is assigned. Here, viewing as a whole the allegations in the complaint and the contentions Dow Jones raises in connection with the instant motion, it appears that what Dow Jones has erected as its case for the existence of an actual controversy justifying declaratory relief is merely guesswork, an abstract tower of hypotheticals stacked like a house of cards on suppositions piled on top of speculations all founded on conjectures and contingent “ifs”, “mays” and “to the extents.” “If’ the London Action is not enjoined, the argument goes, Dow Jones may be sued not only in the United Kingdom but in any other country where the offending publication appeared; if so, Dow Jones necessarily will be held liable; if so, Dow Jones may be ordered to pay damages and/or it may be directed to cease future publication of the article “to the extent that the U.K. court were to issue an injunction” so ordering; Harrods may seek to enforce any judgment not just in the United States but conceivably in other countries. And, as already mentioned, as the antidote to these hypotheticals, if this Court were to grant the relief Dow Jones seeks, the conflict may be fully resolved, closing the loop of surmises, but only “if’ the courts in the United Kingdom (and presumably elsewhere) were to recognize and enforce this Court’s judgment. As the Basic court found under comparable circumstances, such future contingencies ordinarily do not constitute a proper basis for declaratory relief: “The Constitution does not allow a federal district court to issue advisory opinions based on fears of future judgments and speculation.” On this basis, and other considerations discussed' above, the Court concludes that Dow Jones’ claim does not present a actual controversy warranting the declaratory and injunctive relief it seeks. With regard to A1 Fayed, Dow Jones acknowledges that he has not asserted or threatened any claim against Dow Jones, nor is he a party to the London Action. Dow Jones nonetheless contends that, by reason of Al Fayed’s role as chairman and owner of Harrods, and Harrods’ “propensity ... to mingle its corporate purposes with promotion of Mr. Fayed’s personal interests,” while he has “not yet” sued, Dow Jones has no assurance that Al Fayed would not do so, and “believes that Mr. Fayed may in fact sue Dow Jones in the future.” The Court finds these unsubstantiated contingent fears insufficient to support a finding; of an actual controversy warranting the requested declaratory judgment against A1 Fayed. B. PURPOSES OF THE DJA Dow Jones endeavors to shore up the loose sands of contingencies grounding much of its request for declaratory relief by adding a measure of concreteness in real damages it claims to be actually suffering on account of the London Action. It contends that a declaratory judgment would relieve it from “vexatious and oppressive” litigation in another country, in that: (1) the London Action cannot result in any substantial recovery either in the United Kingdom, where Dow Jones maintains no substantial assets, or in the United States, where no court would enforce a judgment based on the April 5 Article; (2) the expense of defending the London Action would be considerable; (3) Dow Jones journalists would be diverted from then-news reporting tasks if required to participate in defending the London Action; and (4) the pendency of the London Action causes Dow Jones to be uncertain and insecure in the exercise of its right to continue publishing the April 5 Article. These types of damages, Dow Jones maintains, are real and immediate and infringe on its “constitutional right not be forced to defend harassing litigation in a distant forum.” Thus, bared of the hypothetical and apprehensions about wrongs and injuries that may or may not occur, what Dow Jones asks this Court to do, in general terms distills to this: to apply the DJA as a defensive shield, a preemptive means to immunize a litigant from the inevitable costs and inconveniences attendant to any form of potential litigation arising from the party’s alleged wrongful acts. In essence then, the question the Court must answer is whether the DJA was meant to serve this sanctuarial purpose, and whether it makes a difference that the asserted harmful conduct relates to exercise of First Amendment rights, in this case a protected publication. The Court finds nothing in the statute or in pertinent case law that lends cogency or force to such an application of the DJA. 1. Constitutional Dimensions A predicate of Dow Jones’ theory is that as regards a claim by a publisher alleging infringement of its freedom of expression by reason of a lawsuit against it arising out of a publication, the First Amendment may be invoked as a refuge to guard against the various burdens and effects ordinarily associated with litigation, whether foreign or domestic. There is no merit to such a far-reaching proposition. First, as already discussed above, the Supreme Court has declared that even in the much more profoundly harmful context of a criminal prosecution instituted under a tenuous statute regulating speech, alleged injuries such as the cost, anxiety and inconveniences an individual may suffer by being compelled to defend litigation are not sufficient by themselves to be considered irreparable, and thus to justify extraordinary federal injunctive relief to bar state judicial proceedings. The Second Circuit has also rejected as insufficient grounds for relief a publisher’s conclusory and speculative assertions claiming a chilling effect on First Amendment rights when based merely on its having to defend an allegedly unmeritorious lawsuit. Second, however subjectively vexatious or oppressive defending a lawsuit may be deemed, even by a publisher, an asserted “right not to be forced to defend harassing litigation in a distant forum” must be balanced against the no less weighty and fundamental due process right of every person in our society to fair access to the judicial system in order to have his day in court. As the claim is articulated here, the Court fails to see how it matters that the forum in which the action Dow Jones objects to is far away or near. Dow Jones’ invocation of its purported right to be protected from litigation “in a distant forum” could not be distinguished from the defense of litigation on the part of many publishers, no doubt including Dow Jones, routinely sued on any given day all over the countiy on claims the defendants may regard no less frivolous, harassing or oppressive than those Dow Jones faces here. It could not be unusual to a publisher in one part of the country to be subjected to a lawsuit instituted in distant jurisdictions, even when it may consider the action entirely unmeritorious under established First Amendment principles. The potential costs, diversion of personnel and resources, the effects of an adverse ruling and other inconveniences associated with defending such litigation would be no less burdensome than those Dow Jones complains of in the instant case. To address legitimate concerns about potential inconvenience to the parties, appropriateness of venue or source of substantive law, aggrieved litigants may avail themselves of established procedures and remedies such as the doctrine of forum non conveniens and principles of judicial abstention or comity. But the response to these potential burdens is not as a routine matter to preemptively shut access to the courthouse in one forum by an anticipatory restraining order issued in another jurisdiction. Neither is it persuasive that the law governing the allegedly burdensome litigation is claimed to offend fundamental federal rights, or that it is foreign rather domestic law. It should come as no surprise to a publisher doing business in many jurisdictions to be hauled into a state court anywhere in this country to defend an action brought under a then prevailing theory of state law whose concept or application of the First Amendment may not conform in some particular way with the understanding the publisher advocates. That a litigant quarrels with a given substantive state law and asserts that on its face a domestic libel suit based on it should be summarily dismissed as hostile to the First Amendment and that any judgment rendered pursuant to it would be patently unenforceable, does not by itself render that affirmative defense eligible for recognition in federal court as a barrier to alleged potentially costly, burdensome or even “chilling” litigation in a state forum. Again, this principle is the same when the application of law is that of a foreign country. Yet, under the logical extension of Dow Jones’ theory, a publisher would be entitled as a matter of course to invoke the DJA as protection and relief from any subjectively irksome and self-declared frivolous litigation affecting freedom of expression, implicitly investing the DJA with operation as a source of substantive rights — a purpose for which the statute was not envisioned. 2. Antisuit Injunctions To be sure, the Supreme Court has left open the possibility that a strong demonstration of bad faith or harassment sufficiently unusual or unconscionable could justify federal intervention to protect the exercise of First Amendment rights against a particular potential infringement in a state proceeding. It made clear, however, that such interference could be justified only in very narrow, “extraordinary circumstances.” The conditions under which this rigorous standard may be satisfied are rare and strictly confined: where an injunctive remedy is necessary in aid of the court’s jurisdiction or to protect or effectuate its judgments. These circumstances ordinarily arise post-judgment in cases where a party, by filing a separate action in another forum, seeks to relitigate matters already adjudicated, or pre-judgment where the litigant otherwise acts unconscionably or in bad faith to frustrate the exercise of the first court’s proper jurisdiction in order to circumvent domestic laws. What public policies these rules encompass, and to'what extent domestic law may be vitiated by a foreign proceeding before comity is not entitled to recognition and injunctive relief may be justified, is not clearly defined. Comity would not be warranted, however, where the purpose of the foreign interference is specifically designed to impede the forum court’s exercise of its proper jurisdiction and thereby hinder its ability to adjudicate a particular conflict pending before it. Under these circumstances denial of comity may be justifiable not necessarily on account of the repugnance of the foreign jurisdiction’s justice system whose