Making its way through the New York state legislature is the Libel Terrorism Protection Act. The bill aims to mitigate the impact of libel tourism, which former civil-rights attorney Samuel Abady believes undermines our First Amendment.
BOB GARFIELD: Making its way through the New York State Legislature is a bill known as the Libel Terrorism Protection Act. If passed, the bill would limit what’s known as “libel tourism,” which, in a nutshell, is when an aggrieved party files suit against a U.S. publisher or author, not here in the States, but, say, in Great Britain, where libel law is much friendlier to the plaintiff.
Through the legal principle of comity, a victory in a foreign court can be enforced here at home. The Libel Terrorism Protection Act seeks to limit such enforcement. That explains the libel part of the bill, but what does it have to do with terrorism? Samuel Abady is a longtime civil rights attorney and outspoken proponent of the bill. He joins me now. Sam, welcome to On the Media. SAMUEL ABADY: Thank you very kindly. BOB GARFIELD: Who are Rachel Ehrenfeld and Khalid bin Mahfouz? SAMUEL ABADY: Dr. Rachel Ehrenfeld is an Israeli-American scholar of terrorism and counter-terrorism, who runs the American Center for Democracy, has been a professor at Columbia, New York University, and perhaps most importantly, one of the world’s leading authorities on the financial roots and ties of terrorist organizations.
Her latest book is called Funding Evil. In that book, she identifies Khalid bin Mahfouz, who is banker to the Saudi royal family, as a financier of terrorism, and specifically, that through something called Muwafaq, or Charitable Blessed Relief Foundation, that he transferred millions of dollars, all told about 74 million, to various terrorist groups, including Osama bin Laden. BOB GARFIELD: All right, now, bin Mahfouz sued Ehrenfeld for libel, but not in the States; rather, he filed the complaint in England. SAMUEL ABADY: Indeed. BOB GARFIELD: Why did he do it that way? SAMUEL ABADY: Well, bin Mahfouz lives in Saudi Arabia. Ehrenfeld lives in New York. Her book, which identifies him as a terrorist financier, was published by Basic Books here in the United States, and that book was not marketed in Saudi Arabia, and was not marketed in Great Britain. So common sense, you would think, meant that he would have to sue where the book was published as where he was libeled.
But, in fact, he went to England and sued her there, because 23 copies of the book were purchased over the Internet.
Unlike in American courts, courts in England, Australia, Canada, the Commonwealth courts, will assert jurisdiction in libel cases merely by contacts in cyberspace. BOB GARFIELD: Now, apart from the question of jurisdiction, what is it about the way libel law is understood in those countries that makes it a friendlier climate for a suit such as bin Mahfouz’s? SAMUEL ABADY: In this country, whenever a plaintiff alleges an injury, typically the plaintiff has the burden of proving the harm.
In England, however, if you sue for libel or slander, the words you claim are offensive are assumed to be false, and the defendant bears the burden of coming forward and proving that they are true. BOB GARFIELD: Now, Ehrenfeld, knowing the differences between U.S. and English libel law, tried preemptively to get a U.S. court to issue what’s called an upfront decision, to prevent any future judgment from England from being enforced here. SAMUEL ABADY: Correct. BOB GARFIELD: But the courts turned her down. SAMUEL ABADY: What Dr. Ehrenfeld did was refuse to recognize the jurisdiction of the British court, simply because 23 copies of her book were ordered from Amazon. And instead, she brought a lawsuit against bin Mahfouz here to declare that his English judgment was not enforceable here as repugnant to the free press provisions of the First Amendment.
And the New York Court dismissed the case, saying that bin Mahfouz had insufficient ties to New York for our courts to assert jurisdiction over him. BOB GARFIELD: Hmm, that’s kind of a Catch-22. SAMUEL ABADY: In England, they’re willing to assert, you know, very tenuous jurisdiction over her, but here, he gets more protection because our courts won’t assert jurisdiction over him. BOB GARFIELD: Now, on the face of it, something called the Libel Terrorism Protection Act, while helping a plaintiff such as Ehrenfeld, could have some other far-reaching and fairly frightening implications if the decisions of foreign courts are not respected here. Am I wrong about that?
SAMUEL ABADY: You’re exactly right. We have an interest in comity, but we also have an interest in protecting our own values. And in this case, our interest in protecting the first amendment and the principles of free speech and a free press trump the interest in enforcing foreign judgments that don’t meet our first amendment standards. BOB GARFIELD: It seems to me that the existence of libel-suit-friendly countries like the United Kingdom could actually, you know, apart from doing harm to authors who have published, cause publishers to not publish things that are worthy of print, just for fear of getting whacked with a giant lawsuit from wealthy Arabs or anyone else. SAMUEL ABADY: This has already happened. After Dr. Ehrenfeld’s book, Funding Evil, was published, two scholars published a book called Alms for Jihad, in which bin Mahfouz was also identified as a major terrorist financier. That book was published by Cambridge University Press, the oldest academic press in the world, and on the mere threat of libel litigation by bin Mahfouz, Alms for Jihad was pulped.
All the unsold copies were destroyed and the British public was no longer allowed to have access to that book. So the real threat to our national security by libel tourism is not theoretical, but practical, and has already happened, as in that case. BOB GARFIELD: Okay, fair enough, although absent the document itself, that is, the book, you know, we can’t know whether the chilling effect in that case stymied some important work coming to light in the public, or whether it was actually defamatory and that England’s fairly liberal view of libel actually saved someone from defamation or other kinds of harm. SAMUEL ABADY: I don’t think it’s just theoretical and I think we do know. We know because Craig Unger’s bestseller in this country, House of Bush, House of Saud, was watered down and had to be published under a different name in England, because of fear of libel tourism.
We know that bin Mahfouz keeps a website boasting of his almost 40 litigations, and he’s hardly alone, and most importantly, Dr. Ehrenfeld has been told that her newest works will not be published because of the impact of libel tourism. BOB GARFIELD: Well Sam, thank you very much for joining us. SAMUEL ABADY: It’s been my pleasure. BOB GARFIELD: Samuel Abady, longtime criminal defense and civil rights lawyer, is now writing and teaching in New York City.