THE BRITISH THREAT TO AMERICAN FREE SPEECH: RACHEL EHRENFELD
OPINION EUROPE, DECEMBER 20, 2009, 3:57 P.M. ET
The British Threat to American Free Speech
The U.S. Congress is considering legislation to protect American writers from the threat of suppressive libel lawsuits in the U.K.
By RACHEL EHRENFELD
The recent movement to change British libel laws to allow for greater freedom of expression has its origins in New York City and New York State.
I am a New York-based scholar specializing in research on terror financing and economic warfare. In my book, “Funding Evil: How Terrorism is Financed—and How To Stop It,” I alleged that Saudi billionaire Khalid bin Mahfouz funded al Qaeda, Hamas and other terrorists organizations through his charitable fronts.
In 2005, Mr. Mahfouz sued me for libel in London, where my book had never been published or marketed. He chose London due to its antiquated libel laws, which are plaintiff-friendly. As recently noted by New York Times correspondent Sara Lyall, London is known as the “Libel Mecca” of the world, and Mr. Mahfouz was the most notorious abuser of the British system. A one-man wrecking crew of Americans’ free speech rights, Mr. Mahfouz exploited British libel laws and courts, threatening or suing more than 40 writers and publishers, including many Americans. These cases were never tried on the merits. Mr. Mahfouz’s litigiousness and deep pockets helped to silence and intimidate Americans and others who tried to expose his terrorist connections.
Except for me.
I refused to acknowledge the jurisdiction of the British courts, asserting my rights as a U.S. citizen. Unimpressed, the British judge rendered a default judgment in favor of Mr. Mahfouz. I was ordered to pay the Saudi more than $225,000, publish apologies in major international newspapers, and destroy all copies of my book internationally.
I sued in New York to prevent enforcement of the British judgment in the United States, petitioning the court to declare that the foreign judgment violated my First Amendment rights and was therefore unenforceable.
When the New York courts ruled that they could not assert jurisdiction over Mr. Mahfouz, New York legislators, led by Assemblyman Rory Lancman (a Democrat) and Dean Skelos (a Republican), introduced the Libel Terrorism Protection Act (aka “Rachel’s Law”). The law, passed in April 2008, protects New York-based publishers and writers from the enforcement of foreign libel judgments obtained in jurisdictions lacking First Amendment-level protections for freedom of expression. Since then, California, Florida and Illinois have passed similar laws.
But these laws provide only patchwork protection, leaving U.S. writers in 46 other states vulnerable to repressive foreign libel laws. Even the recent movement to change British libel laws will not remove the Sword of Damocles dangling over American academicians, reporters, producers, scientists, and everyone who publishes in print and on the Internet. The threat emanates not only from Britain, but from many other countries as well. It extends to an infinite number of issues, including national security, the travel industry, and science and medicine.
Two recent cases demonstrate the urgent need for the enactment of national protection against suppressive foreign libel suits.
Joseph Sharkey, a New Jersey-based freelance travel journalist, is being sued in Brazil for “insulting the dignity” of the nation in the aftermath of a lethal plane crash that he and few others survived. Mr. Sharkey, who criticized Brazil’s incompetent air control on his blog, was sued for defamation, and the Brazilian government is moving to criminalize his case.
In Toronto, Canada, Pennsylvania-based writer Paul L. Williams is being sued for libel because he revealed that al Qaeda members who attended the McMaster’s College of Engineering in Hamilton, Ontario, apparently left the school in 2004 with 180 pounds of nuclear waste. Those al Qaeda members have been designated as terrorists by the United States, and each has a $5 million bounty on his head. Yet McMaster’s University is suing Mr. Williams for libel. His trial is scheduled for April.
Messrs. Sharkey and Williams and all Americans can be protected from such frivolous foreign libel suits by the Free Speech Protection Act 2009, now pending in Congress. The bill (S. 449), proposed by Senators Arlen Specter and Joseph Lieberman, and co-sponsored by Charles Schumer and Ron Wyden, stems from New York’s Rachel’s Law, and has sharper teeth. It prevents the enforcement of foreign libel judgments, providing for legal expenses and—possibly—for damages.
As Mr. Sharkey’s and Mr. Williams’ cases show, The Free Speech Protection Act is urgently needed. Since the bill enjoys wide bipartisan support and requires no budgetary allocations, there is no reason for delay.
Now that the British are considering reforming their libel laws to include protection similar to American laws, the U.S. should continue to lead the world in the protection of freedom of expression.
Ms. Ehrenfeld is the director of the American Center for Democracy and the Economic Warfare Institute and the author of several books on terror financing.
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