In 2003, New York criminologist Dr. Rachel Ehrenfeld published Funding Evil, a book that meticulously details the clandestine networks through which terrorist organizations such as Al Qaeda obtain their financing. But by doing so, she drew the ire of a litigious Saudi banking magnate, Sheikh Khalid bin Mahfouz, who has repeatedly brought suit in England's plaintiff-friendly libel courts to suppress exposure of his covert activities. He sued Ehrenfeld in London in 2005. Three years, two lawsuits, and one important piece of legislation later, New York governor David Paterson will decide today whether to sign into law the Libel Terrorism Protection Act, a bill that would render foreign libel judgments unenforceable against his state's authors and journalists. Known informally as "Rachel's Law," the new bill could bring closure to what Boston civil liberties lawyer Harvey Silverglate has called "one of the most important First Amendment cases of the past twenty-five years."
Law firm partner and renowned First Amendment scholar Floyd Abrams has published an op-ed in today's Wall Street Journal, commending the state legislature for its timely, important work, and calling on Governor Paterson to protect New Yorkers from foreign impositions on their constitutional freedoms. As a democratic nation, England has every right to choose its own legal system, Abrams notes. But so, too, does the United States:
[T]here are sharp distinctions between U.S. and English law. One difference is that under the First Amendment we provide far more protection for speech that is claimed to be libelous.There is no need for democratic nations to agree upon such matters. The values of free speech and individual reputation are both significant, and it is not surprising that different nations would place different emphasis on each.
But a serious problem has surfaced. In recent years, English libel law has come to have a disturbing impact on the right of Americans to speak out.
England has become a choice venue for libel plaintiffs from around the world, including those who seek to intimidate critics whose works would be protected in the U.S. but might not in that country. That English libel law has increasingly been used to stifle speech about the subject of international terrorism raises the stakes still more.
[...] Gov. David Paterson has until the end of today to decide whether or not he will sign the [Libel Terrorism Protection Act]. Meanwhile, the Ehrenfeld saga has led Rep. Peter King (R., N.Y.) to propose federal legislation which would provide similar relief.
The need for such legislation has become very real – all the more so since English libel law is increasingly being used to limit public debate about terrorism. Mr. Bin Mahfouz has personally commenced or threatened to commence at least 30 law suits in England. This tactic has served him well in obtaining libel judgments that would be unthinkable as well as unconstitutional here. The danger is that other American writers and publishers will shy away from this crucial subject, out of fear of being sued far from home.
This is a reasonable concern as a good deal of litigation related to reporting on terrorism has been threatened or started in England by individuals who have limited contact with that nation, but who find its libel law congenial.
England should be free to choose its own libel law. But so should we. It is not too much to ask that American law should protect our people when they speak in precisely the "uninhibited, robust and wide-open" manner that the First Amendment was drafted to protect.
Last year, MPI fellow Jared Lapidus used the medium of short film to highlight the difficulties faced by the brave authors and journalists whose work sheds sunlight on terrorism's furtive financiers. Released at a pivotal moment in Ehrenfeld's case, Lapidus's film played an important role in raising awareness of the problem and in encouraging legislators and citizens to advocate for change. The Libel Tourist can be viewed online at LibelTouristMovie.com.