Persistence of Vision

One of the hardest things about documentary journalism--whether narrative or cinematic--is closure. Books and movies need to end, while the events and issues they chronicle tend to go on and on. This dynamic was painfully experienced by one of the genre's first and most accomplished practitioners--Truman Capote had to wait years to finish his masterpiece, In Cold Blood, as the death row murderers he was writing about had to complete their grindingly slow appeals process before Capote could say what finally became of them. Capote later compared the paralysis he experienced during that time to a death.

Capote was nothing if not melodramatic. But the difficulty built into the project of artistically reporting current events is real enough.

When MPI fellow Jared Lapidus was putting the finishing touches on The Libel Tourist during the summer and early fall, he found himself delaying completion because libel tourism was much in the news and he wanted to incorporate new developments into his film. But a line did get drawn in November, and Lapidus was certainly right to release his film when he did. The movie does a great job of laying out what is at stake in libel tourism by way of Rachel Ehrenfeld's case against Saudi billionaire Sheikh Khalid bin Mahfouz. But at the time, Lapidus wasn't in a position to say whether the U.S. courts would uphold Ehrenfeld's free speech rights, or whether, by extension, it would pose a pointed and necessary challenge to the manner in which English law enables libel tourists to strike devastating blows against free speech--for the simple reason that Ehrenfeld's case was still pending.

Unlike Capote, Lapidus could and did release his work when the outcome was unclear. And that was a wise move, as it allowed him to use his film to frame important issues. Had the outcome been known, the film would have had to have been framed around events rather than principles -- and, as the developments of this week reveal, that makes for a dispiriting picture indeed.

Earlier this week, New York's highest court tossed Ehrenfeld's case--and sent a chilling message to those who seek to expose how global terror networks are financed:

New York's highest court has passed up an opportunity to protect American authors from the libel judgments of foreign courts. In a decision handed down yesterday, the Court of Appeals in Albany told a New York-based researcher that she could not use the courts here to challenge a British judgment ordering her to pay 30,000 British pounds — more than $60,000 — for defaming a Saudi billionaire.

The case was a test of how New York's courts will respond to concerns that the First Amendment rights of American authors are undermined by libel judgments imposed abroad, especially in Britain.

Libel law in Britain is far more plaintiff-friendly than libel law in America. This discrepancy has given rise to a practice that critics call "libel tourism." In recent years, American authors and journalists have found themselves sued by non-British nationals in British courts over articles and books published in America.

The researcher, Rachel Ehrenfeld, had asked a court in New York to declare the British judgment against her unenforceable under the First Amendment.

But the Court of Appeals said a New York court first needed jurisdiction over the Saudi financier who brought the case, Khalid bin Mahfouz, before it could take up Ms. Ehrenfeld's countersuit. The court found that Mr. Mahfouz had so few dealings involving New York that no local court had jurisdiction over a suit against him.

The decision does not preclude Ms. Ehrenfeld from challenging the judgment if Mr. Mahfouz goes to court in New York to try to collect. But Ms. Ehrenfeld's attorney, Daniel Kornstein, has said having the judgment hanging over Ms. Ehrenfeld has affected her research and writing, regardless of whether Mr. Mahfouz tries to collect in a New York court.

The decision, written by Judge Carmen Beauchamp Ciparick, an appointee of Governor Cuomo, sidestepped Ms. Ehrenfeld's claims that the British judgment was hampering her free speech. Of "libel tourism," the decision states: "However pernicious the effect of this practice may be, our duty here is to determine whether defendant's New York contacts establish a proper basis for jurisdiction."

A lawyer in Boston who has written on the case, Harvey Silverglate, said: "The New York Court of Appeals could have done a better job of protecting our constitutional rights than it did here with this rather technical opinion."

At issue is Ms. Ehrenfeld's 2003 book, "Funding Evil: How Terrorism Is Financed — and How to Stop It," in which she accuses Mr. Mahfouz of backing organizations with alleged ties to terrorism. Mr. Mahfouz denies the accusation, and he sued Ms. Ehrenfeld and other researchers who have made similar allegations against him in court in London. Ms. Ehrenfeld's work has appeared in many publications, including The New York Sun.

Ms. Ehrenfeld never appeared before the British court, which in 2005 ordered her to print an apology, keep her books out of the country, and pay Mr. Mahfouz the fine.

Last year, Britain's highest court, the House of Lords, made it significantly more difficult for journalists to be sued for libel. That decision came in a case against the Wall Street Journal Europe brought by another Saudi businessman.