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Home > Publications > Quill > Chilling Free Speech


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Monday, August 25, 2008
Chilling Free Speech

Ryan Feeney

Rachel Ehrenfeld came to the United States from Israel because of this country’s unique brand of free speech. As an American citizen living in New York, she wanted the First Amendment’s robust protections as she researched and wrote about terrorism and its support network.

But after she published her most recent book, “Funding Evil: How Terrorism is Financed and How To Stop It,” she discovered that those free-speech safeguards could not prevent a chilling effect from abroad. Saudi businessman Sheik Khalid bin Mahfouz’s suit against Ehrenfeld led an English court to enter a default judgment fining her and declaring that parts of her book were false. Subsequently, she lost other opportunities to publish.

“He’s responsible for London becoming the libel Mecca,” said Ehrenfeld about bin Mahfouz, who has sued or threatened to sue for libel numerous times in England.

Proof of Malice

Linking a person to an “unpopular” group has often led to a rash of libel suits against the press. It happened with communism in the 1940s, organized crime in the 1970s and homosexuality in the 1980s. Yet in the more than four decades since the landmark New York Times v. Sullivan decision in America, libel plaintiffs in the United States have found it acutely difficult to muzzle the press under that decision’s “actual malice” standard. “Actual malice” requires a plaintiff to prove that a defendant published allegedly libelous statements about a public official or public figure knowing they were false or with reckless disregard for the truth.

But these free speech protections apply only on American soil, which means they cannot be used against the latest wave of libel litigants who bring suits overseas – such as foreigners accused of terrorism ties. A confluence of events has inspired this most recent attempt to evade the First Amendment and chill speech in America, including the attacks of Sept. 11, 2001, the international distribution of journalism over the Internet, and stark differences in defamation laws between the United States and the rest of the world.

England has become the forum of choice for those seeking to repair a besmirched reputation, injecting even more life into this latest incarnation of libel litigant. Because of policy concerns deeply rooted in English history, that country observes laws that tend to protect reputation over free speech. For example, a journalist in England must prove that a defamatory statement is true to defeat a libel claim. In America, the burden is on the one bringing the libel suit against the media to prove that the statement is false. Moreover, under English law, a written work is “published” where it is read even if that is a different country from where it was originally created (this includes works published on the Internet). In America, an original written work is only considered “published” where it is originally created, a rule that tends to limit media liability.

Libel Tourists

Together, these factors have produced the “libel tourist,” a forum shopper who does not reside in England but who is able to bring a libel action in courts across the pond based on what some see as often-tenuous business, family or other ties creating a reputation there. These so-called libel tourists will use the integrity and publicity that comes from an overseas judgment as proof that their names were unjustly smeared, allowing them to cast doubt on the credibility of American journalists.

“They give the patina of legitimacy from a legal judgment in the U.K., one of the oldest democracies, that American journalists are slamming the subjects of their articles and books,” said Rory Lancman, an assemblyman in the New York state legislature who introduced the first legislation to combat the problem. “They go essentially into a kangaroo court for libel purposes, get a default judgment and waive it around.”

The news media has been a frequent target in English libel claims brought on by nonresident Arabs since the Sept. 11, 2001, terrorist attacks, and bin Mahfouz is often held out as the archetypal libel tourist. Responding to reports of his terror connections, bin Mahfouz has launched his own Web site that lists corrections and apologies from news media and authors from America and Europe.

Ehrenfeld was his most high-profile target. Bin Mahfouz and his two sons sued her in London in 2004, claiming the allegations in “Funding Evil” that tied him and his family to terrorist organizations were libelous. Twenty-three copies of the book were sold in England over the Internet and the first chapter of the book was made available on an ABC News Web site, which was accessible in England.

Ehrenfeld made the strategic decision to not fight the libel action in the English court, which subsequently entered a default judgment against her, declared the statements regarding bin Mahfouz false, and fined her ₤30,000 in damages and another ₤30,000 in litigation costs. But Ehrenfeld had no assets in England, and bin Mahfouz did not seek to enforce the judgment in America.

Chilling Free Speech

Instead, Ehrenfeld fought back in the United States. She detailed bin Mahfouz’s English suit in a new preface to the subsequent paperback release of “Funding Evil” and added to the front cover, which now says: “The book the Saudis don’t want you to read.” She also sued bin Mahfouz in New York federal court for a declaration that the foreign judgment was unenforceable. Although the court noted the “pernicious” effect of libel tourism “to chill free speech in the United States,” it declined jurisdiction over bin Mahfouz based on the mere fact that he had obtained a foreign libel judgment against Ehrenfeld. A federal appellate court affirmed that decision.

Foreign libel litigants’ suits against American journalists who write about terror send “an unmistakable message to other writers and publishers that scrutinizing the activities of that litigant, and others of similar wealth and combativeness, is a perilous legal, professional and financial course,” said a legal brief signed by a coalition of media organizations in support of Ehrenfeld’s stateside suit.

After bin Mahfouz’s successful English libel suit, Ehrenfield said, publications began rejecting her other pieces about a Saudi-owned company.

Other books focusing on terror have been pulped and other writers have had to make changes to books published in England in order to avoid libel suits.

“To the extent that Saudis can use British law against Americans, libel tourism has potentially a real chilling effect,” said Craig Unger, author of The New York Times bestseller “House of Bush, House of Saud,” a slightly altered version of which was distributed in England.

A Reasonable System

Across the Atlantic, however, English libel lawyers defend the system as reasonable.

“The English courts have been careful to develop cases where there is a genuine connection to this jurisdiction,” said Laurence Harris, an English libel lawyer who represented bin Mahfouz in his English suit against Ehrenfeld.

“The English law question is not whether someone is a national, an English citizen; what England is concerned with is whether they have a substantial reputation here,” he said. He also said that English libel suits can be justified based on the level of journalism at issue.

“After 9/11, journalists started to look at subjects such as terror and terrorism funding – and the quality of that writing was extremely variable,” Harris said.

Some attorneys in the United States agree. New York media law lawyer John J. Walsh called libel tourism a “myth” in a November 2007 column published in the New York Law Journal. Ehrenfeld’s argument in her lawsuit – that libel tourists such as bin Mahfouz use English laws to harass and intimidate her and other terrorism writers – is unfair to the English legal system, he argued.

“At a time in our history when American policies and attitudes on a wide variety of subjects are antagonizing authorities and populaces in other countries around the world, that is truly an unseemly spectacle,” Walsh wrote.

Walsh also suggested that American media cannot expect to be free from liability for the publication of damaging words anywhere outside the United States, especially as international law has slowly adapted to the Internet age. Such attempts to vilify English libel courts threaten the legal concept known as “comity,” he said, which decrees that nations should give effect to each other’s laws and judgments, including those protecting reputation.

Libel Terrorism Protection Act

Despite these arguments, New York became the first state to enact legislation dealing with libel tourists after Ehrenfeld’s suit against bin Mahfouz in New York failed. The “Libel Terrorism Protection Act,” passed earlier this year, cures the defect in her case by allowing New York courts to exercise jurisdiction over foreign libel litigants based on the mere fact that they had obtained a foreign defamation judgment against a New York writer or publication.

“We view bin Mahfouz as part and parcel of an effort on the part of terrorism sympathizers and facilitators to use the courts to stifle efforts to win the war on terrorism,” said Lancman, the primary sponsor of the legislation. “If we lose our freedom to expose what terrorists are doing, we lose our freedom. Much of what has been exposed has been exposed by journalists since 9/11."

Following New York state’s lead, the members of Congress introduced three bills this year to deal with libel tourism. H.R. 6146 – the most innocuous of the bills – would bar enforcement in the United States of a foreign defamation judgment against an American writer or publication if it is not consistent with the First Amendment. Identical bills H.R. 5814 and S. 2977 (both titled the “Free Speech Protection Act”) would allow American writers to sue foreign libel litigants in United States courts just as the New York state law does, but also would allow for stiff financial penalties against the foreign libel litigant, including treble damages if a court found that the foreign plaintiff intentionally schemed to suppress First Amendment rights.

But Harris, the British lawyer, said he did not think that either the New York law or the bills in Congress, if passed, would bring significant changes because United States courts already have been unwilling to enforce foreign libel judgments if they do not meet First Amendment free-speech principles.

“A decision of a U.S. court under this newly created right of action (by the Free Speech Protection Act) will not be recognized by probably most, if not all, of foreign courts outside the U.S.,” Harris said.

The federal bills’ chances for passage this Congress are fairly slim, especially as both the House and Senate address other important concerns such as energy and a federal shield law. All of the bills remain in committee, and no hearings have been scheduled.

Good News

While a national response to libel tourism may fail, the good news for the American news media is that English defamation law appears to be moving toward more press protections. In 2006, the English House of Lords made it easier for news media defendants in England to successfully use a qualified privilege for reporting on matters of public interest in Jameel v. Wall Street Journal Europe.

Under Jameel, the news media have a qualified privilege against liability for defamation if: 1) the publication concerned a matter of public interest; 2) the defamatory statement was justifiable; and 3) the steps taken to gather and publish the information were responsible and fair.

Harris argued that, in some ways, the Jameel decision has provided broader free-speech protections for the press than Sullivan. While that decision protects the press by focusing on reporting involving a “public figure,” the English privilege can be invoked more generally if a public matter is involved.

“In that sense, it might be thought that the English law has moved beyond Sullivan because it covers matters of public interest,” he said.

However, the English qualified privilege is defeated if the report did not involve “responsible journalism.” This naturally requires judges to assess whether journalists were at fault in their reporting techniques. As Harris noted, “that’s more stringent than Sullivan.”

This story is a condensed version of the Pulliam/Kilgore Report, which was distributed at the 2008 SPJ Convention & National Journalism Conference.

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