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John Stuart Mill said in On Liberty, "We can never be sure that the opinion we are endeavoring to stifle is a false opinion; and if we were sure, stifling it would be an evil still." Yet, a new challenge has arisen to free speech in America: restrictive libel laws found in British courts are being used to intimidate and seek punitive action against U.S. authors. In May 2005, an English court ordered Rachel Ehrenfeld and her publisher to pay about $250,000 to a Saudi billionaire named Khalid bin Mahfouz and his sons in connection with the publication of Funding Evil, a book Ehrenfeld published in 2003 to draw attention to the financial connections between the Saudi government and wealthy Saudi individuals and terrorist networks. Although Ehrenfeld did not publish Funding Evil in the United Kingdom, twenty-three copies were sold in Britain through the internet. Using British libel laws and courts, Mahfouz managed to tamp down criticism and attention to terrorism funding, obtaining more than forty retractions and apologies.
Ehrenfeld's case led the New York state legislature to pass the Libel Tourism Protection Act; Illinois passed similar legislation, and California is considering a measure. All are similar to the Free Speech Protection Act, sponsored by Senators Arlen Specter (R-Penn.), Joseph Lieberman (I-D-Conn.), and Charles Schumer (D-N.Y.) and Representative Peter King (R-N.Y.), now pending before Congress.
What are the merits of these legislative measures? How has globalization and interconnections between different national legal systems affected free speech worldwide? AEI's Richard Perle will moderate a panel to discuss these and other questions.
|2:00||Presenters:||Floyd Abrams, Cahill Gordon & Reindel|
|Bruce Brown, Baker Hostetler|
|Daniel Kornstein, Kornstein Veisz Wexler & Pollard|
|Mark Zauderer, Flemming Zulack Williamson Zauderer|
|Discussant:||Rachel Ehrenfeld, American Center for Democracy|
|Moderator:||Richard Perle, AEI|
"Libel Tourism" and the First Amendment
WASHINGTON, MARCH 24, 2009--A rise in libel suits brought in British courts against works published in other countries has threatened free speech in America, silenced critics of Islamic radicalism, and provoked a debate over the proper legislative response. Richard Perle, an American Enterprise Institute resident scholar, moderated a recent panel discussion at AEI on the topic.
A libel suit brought against author Rachel Ehfrenfeld over her 2003 book Funding Evil, served as the event's focus. Funding Evil prompted Khalid bin Mahfouz, a Saudi billionaire, to sue Ehfrenfeld in the United Kingdom, despite the fact that the book was published in the United States and only reached British citizens who purchased twenty-three copies over the Internet.
According to some of the panel members, potential lawsuits give pause to American publishers that wish to release books on the connections between terrorist groups and their wealthy sponsors, especially those sponsors located in Saudi Arabia. Rather than run the risk of a libel suit, publishers may instead choose to publish and promote less controversial work.
While agreeing that the U.S. needs a firm consensus on its own legal response
to foreign libel judgments, the panelists disagreed over the ability of domestic
legislation to affect court proceedings in foreign countries by assuming
jurisdiction outside the United States.
The threat of international lawsuits has already produced legislation in several states, including Illinois and New York, while the U.S. Senate is considering a measure sponsored by Senators Charles Schumer (D-N.Y.), Arlen Specter (R-Penn.), and Joseph Lieberman (ID-Conn.) known as the Free Speech Protection Act.
"The legal systems between the US and the UK are so startlingly different that a few courts have already held here that they will not enforce libel judgments against American citizens," said Floyd Abrams, a partner at Cahill Gordon & Reindel.
"Under our law, since 1964 at least, it has been clear that when you write about a matter of public interest, if you believe what you write, or to put it negatively, if you don't write with actual malice, you're protected," said Abrams.
However, the panelists did not agree on the contours of a proper policy response--specifically, they disagreed over whether U.S. courts should expand their jurisdiction to challenge libel judgments made in foreign courts or if the U.S. should allow the current system to remain in place.
"This is an interference with the court system of another country," said Mark Zauderer, a partner at Flemming Zulack Williamson Zauderer, who claimed that the Free Speech Protection Act is "unconstitutional" because it extends jurisdiction, against established precedent, to a foreign court. Zauderer proposed as an alternative a policy that would allow American citizens sued for libel abroad to "counterattack" in U.S. courts.
"In the event that the UK judgment is brought to the United States, [Congress] could create the capacity for a plaintiff to seek damages in an American court," said Zauderer, stating that this would create a disincentive to seeking a libel suit in a British court. Zauderer also argued that individuals should face the consequences of the legal systems in other countries when operating in their territories.
Daniel Kornstein, a partner at Kornstein Veisz Wexler & Pollard, argued that such a policy would allow the danger from libel suits to continue unabated, stating that the very threat of a suit abroad would prevent small publishing houses from publishing controversial books. Abrams agreed, pointing out that the endangered nature of many American newspapers makes the threshold for risk that much lower.
Kornstein also said however that the current Senate legislation, while stemming from the right motivations, could use improvement. He argued the Senate measure should simply state, "If a foreign jurisdiction does not have the same standards as we do, then we won't enforce the judgment."
Ehrenfeld claimed bin Mahfouz's current campaign has proven the danger of doing nothing. According to her, fewer works on Saudi financing have reached publication in recent years, while bin Mahfouz has sued nearly forty-five publishers and published apologies from critics on his website.
The government could seek a middle ground, argued Bruce Brown, a partner at Baker Hostetler, by implementing a policy that would reimburse the attorney fees of American citizens sued for libel abroad.
Libel tourism used to be just an academic issue, according to Brown, who claimed that the Internet's rise and the wide scope of British judges' verdicts have increased judgments in recent years.
"It is now a common joke for British libel lawyers to say they just came from
a town named 'Sue'," said Brown.
Brown argued that libel tourism highlights a real threat to the sovereignty of American law. "This case is not about exporting American law, but about importing British law," he observed. "As the Supreme Court said, that's why we fought a revolution."
Floyd Abrams is a partner at Cahill Gordon & Reindel, where he serves as a member of the firm's executive committee and its litigation practice group. Mr. Abrams has a national trial and appellate practice and extensive experience in high-visibility matters, often involving First Amendment, intellectual property, insurance, public policy, and regulatory issues. He has argued frequently before the U.S. Supreme Court in cases raising issues as diverse as the scope of the First Amendment, the interpretation of the Employee Retirement Income Security Act, the nature of broadcast regulation, the constitutionality of the McCain-Feingold Act, the impact of copyright law, and the continuing viability of the Miranda Rule. His clients have included the New York Times in the Pentagon Papers case, ABC, NBC, CBS, CNN, Time magazine, BusinessWeek, The Nation, Reader's Digest, the McGraw-Hill Companies, Hearst, AIG, and others in trials, appeals, and investigations. Mr. Abrams, who served as chairman of New York City mayor Edward Koch's Committee on Appointments, also served as the chairman of the New York State Zenger Commemoration Planning Committee. Previously, he served as the chairman of the Communications Committee of the Association of the Bar of the City of New York, as well as chairman of the Committee on Freedom of Speech and of the Press of the Individual Rights Section of the American Bar Association and of the Committee on Freedom of Expression of the Litigation Section of the American Bar Association. Mr. Abrams served on the Technology and Privacy Advisory Committee of the U.S. Department of Defense in 2003–2004 and as the chair of the New York State Commission on Public Access to Court Records in 2004. He has appeared frequently on television on Nightline, The NewsHour with Jim Lehrer, Charlie Rose, and other programs and has published articles and reviews in the New York Times, the Washington Post, The Yale Law Journal, Harvard Law Review, and elsewhere. Mr. Abrams is the William J. Brennan Jr. Visiting Professor of First Amendment Law at the Columbia Graduate School of Journalism, a visiting lecturer at Yale Law School, and author of Speaking Freely: Trials of the First Amendment (Viking Press, 2005).
Bruce Brown is a partner at Baker Hostetler in Washington, D.C., where he has worked in media law since 1997. He specializes in libel and invasion of privacy, news-gathering, and copyright. A significant part of his practice is focused on working with in-house counsel on prepublication review, author-publisher agreements, and website liability. He regularly assists the Society of Professional Journalists on freedom of information matters. Mr. Brown is the cochair of the legislative affairs committee of the Media Law Resource Center in New York and an adjunct faculty member in Georgetown University's master's program in professional studies in journalism. Prior to joining Baker Hostetler, Mr. Brown was a federal court reporter for Legal Times and a former newsroom assistant to David Broder at the Washington Post. He has been named one of Washington's top media and First Amendment lawyers by Washingtonian magazine and The Best Lawyers in America.
Rachel Ehrenfeld is the director of the American Center for Democracy and the Center for the Study of Corruption and the Rule of Law. She is the author of Funding Evil: How Terrorism Is Financed--and How to Stop It (BonusBooks, 2003, 2005); Evil Money (HarperCollins, 1992; SPI, 1994); and Narco-Terrorism (Basic Books, 1990, 1992). Ms. Ehrenfeld is an expert on the movement of funds through international banking, governments, and business to fund terrorism. Her work led to a new law, known as "Rachel's Law," to protect the freedom of expression of New York state writers and publishers, in May 2008. Ms. Ehrenfeld has testified before congressional committees and European and Canadian parliaments, provided evidence to the British Parliament, and consulted foreign governments and U.S. government agencies such as the CIA and the Departments of State, Defense, the Treasury, Justice, and Homeland Security. She is also a member of the board of directors of the Committee on the Present Danger. She has been a visiting scholar at the Columbia University Institute of War and Peace Studies; a research scholar at the New York University School of Law; and a fellow at the Johns Hopkins School of Advanced International Studies, the Fletcher School of Law and Diplomacy, and Jesus College at Cambridge University. Her articles have appeared in numerous publications, such as the New York Times, Forbes, the Los Angeles Times, the Jerusalem Post, the Wall Street Journal, and the Huffington Post, and she is a frequent guest on domestic and international television and radio.
Daniel Kornstein is a partner at Kornstein Veisz Wexler & Pollard. For more than fifteen years, Mr. Kornstein has been listed in The Best Lawyers in America in the business litigation category; he was selected as a New York "Super Lawyer" for the past three years. Mr. Kornstein has conducted over one hundred trial-type proceedings (including twenty jury trials) and argued more than sixty appeals. His clients range from celebrities in the entertainment, publishing, and sports industries (including numerous well-known actors, producers, writers, editors, and photographers) to large corporations, financial institutions, and individuals. He has been involved in notable First Amendment cases, as well as substantial antitrust, securities, employment, product liability, family law, and international matters. In 2001, the Palais Littéraire et Musical (the Law and Literature Society of France) awarded Mr. Kornstein the prestigious Prix du Palais Littéraire for his writing on Balzac and the law.
Richard Perle is a resident fellow at AEI. He is a leading authority on national security, military requirements, arms proliferation and defense, and regional conflicts. He previously served as chairman of the Defense Policy Board (2001–2003); as assistant secretary of defense for international security policy (1981–87); and on the U.S. Senate staff (1960–80). Mr. Perle writes frequently for the op-ed pages of the New York Times, the Washington Post, the Wall Street Journal, the Daily Telegraph (London), the Jerusalem Post, and other publications. He appears on radio and television on matters of security and foreign policy. He is the coauthor of An End to Evil (Random House, 2003) and author of Hard Line (Random House, 1992), a political novel.
Mark Zauderer is a partner at Flemming Zulack Williamson Zauderer, where he focuses his practice on trials, arbitrations, and appeals of business and commercial cases throughout the United States and frequently serves as an arbitrator and private mediator of significant disputes. He currently serves as president of the Federal Bar Council and a member of the board of editors of the New York Law Journal. In 2003, Mr. Zauderer was appointed by Chief Judge Judith S. Kaye as chair of New York's Commission on the Jury, a blue-ribbon panel charged with finding ways to better utilize the time of citizens who report for jury service. He also served as a member of the chief judge's Commercial Courts Task Force, which implemented the establishment of the New York state court system's commercial division, and as a member of the Office of Court Administration's Program on the Profession and the Courts, which drafted New York's current sanctions rules. Mr. Zauderer is a past chair of the two-thousand-member Commercial and Federal Litigation Section of the New York State Bar Association, served as a delegate to its house of delegates, served as a member of the Special Committee on Cameras in the Courts, and chaired its Steering Committee on Commerce and Industry. He also served as a member of the Committee on the Judiciary, the Committee on Professional Responsibility, and the Committee on State Courts of Superior Jurisdiction of the Association of the Bar of the City of New York. Mr. Zauderer currently serves as a member of the governor's Judicial Screening Committee for the Appellate Division, Second Department, and a member of the chief administrative judge's Advisory Committee on Civil Practice. He lectures frequently and provides media commentary on litigation-related issues. He was formerly a partner with Solomon, Zauderer, Ellenhorn, Frischer & Sharp, a firm he cofounded in 1981.