Libel Tourism: The Chill Continues

Rachel Ehrenfeld suffered a major setback in her fight against the litigation jihad in a NY courtroom today. I have been watching this landmark case for some time. Saudi financier, Khalid bin Mahfouz, is suing Ms. Ehrenfeld for uncovering his alleged ties to terrorism in her 2003 book, "Funding Evil: How Terrorism is Financed" — and How to Stop It. " In it  she accuses Mahfouz of backing organizations tied to terror.  Saudis sue for secrecy . Atlasite Jeff said, "This Sheikh is able to use the British courts to propagate 'legal' jihad against those who "dare" have the audacity and temerity to expose him. American organizations like CAIR, MSA and ISNA are also employing every tactic they can to use the American legal system against Americans who speak out about those who support and perpetrate jihad in this country."

Today a NY judge ruled that the New York State laws are not “coextensive with federal due process requirements,” which means the New York State courts are not as required as federal courts to protect rights under the Constitution’s First Amendment freedom of speech". Imagine this assault on free speech coming out of one of the original 13 colonies. Our forefathers are seizing in their graves.

You can read the document here but Bruce over at The Democracy project has a comprehensive post on today's ruling and its chilling implications. The judge, Judge Carmen Beauchamp Ciparick, is your typical bleeding heart liberal so it's not surprising. Beauchamp worked for the legal aid society after she passed the bar and was appointed by Cuomo (ugh) and was recently nominated by Gov-thug-ernor  Spitzer to continue her service as an Associate Judge,.

The terrible reality is publishing houses won't publish these books out of fear. Daring truth tellers will be silenced once again as the litigation jihad becomes more agressive and makes strong advances against the freedoms we in the West take very much for granted.

Her are a few excerpts from Bruce's article here:

New York’s Sun summarizes the judgment, “New York Appeals Court Opens Door to 'Libel Tourism' “, but misses a few key points. First, the Sun’s report:

NEW YORK’s Highest court turned down a chance today to protect American authors from libel judgments awarded by foreign courts.

The case decided today, which pits a Saudi billionaire against a New York-based researcher, was a test of how New York's courts will respond to concerns that the First Amendment rights of American authors are being undermined by libel judgments imposed abroad, especially in Britain.

Libel law in Britain is far more plaintiff-friendly than America's libel law, and the discrepancy has given rise to a practice that critics describe as "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.

[...]

 

What’s missing from the Sun’s account are four important points:

1. The NY law, unlike say California’s, is narrowly drawn, so residents have less protections from suits decided in other jurisdictions, especially ones that may be specious.

2. New York is a world center of publishing. All its publishers are, and some already have been, subject to “libel tourism” suits from Britain’s lax laws, which require the defendant to expensively prove all allegations rather than the plaintiff to prove libel as under U.S. law. These suits are a chill upon Americans’ free speech rights, as even a few copies of a U.S. publication sold over the Internet in Britain (as were just 23 copies of Ehrenfeld’s book) opens U.S. publishers to “libel tourism” suits from Britain.

3. New York’s legislature should immediately correct its statute, to conform to the U.S. Constitution. NY publishers and others should contact Governor Spitzer, their legislative reps, and also U.S. Senators Schumer and Clinton to bring their influence to bear.

4. Rachel Ehrenfeld, meanwhile, has seen her publishing access squeezed by fear of this suit, and lost considerable opportunities to earn her living, while Americans have been denied the opportunity to read her well-researched exposes of Arab financing of terror.

As the Sun article says, maybe, if Mahfouz seeks to collect on Britain’s court judgment in a New York court, Ehrenfeld might have grounds to very expensively defend herself again, and hope the New York courts will be more willing to defend the First Amendment. The current New York statute only allows defense against “long arm” suits if the out-of-state resident has business transactions, also, within New York. Hiring New York lawyers might be construed as having such business transactions.

But, by that time, a victim of “libel tourism”, like Ehrenfeld, is bled dry, and probaly unable to defend themselves. Another victory for those who want to silence critics of Arab financing of terror.

New York’s law is, in effect, bleeding dry our First Amendment rights and protections.

New York publishers better get off their duffs and help.

The Associated Press reports,

The unanimous decision interpreting a New York law now goes to a federal court. There, author Rachel Ehrenfeld has sought to combat what her attorney argued was a chilling effect on free speech by the billionaire, Khalid Salim A. Bin Mahfouz. The Saudi businessman has sued more than two dozen times over writings on terrorism and those who fund it, including Ehrenfeld's 2003 book.

"The chill continues," said Ehrenfeld's attorney, Daniel Kornstein of Manhattan.

Kornstein said the businessman hasn't tried to collect on his judgment, which includes an apology and a halt on book sales. But he said the London court verdict is a threat to authors.

"That's the danger and the risk and the problem that we tried to stress," Kornstein said. "It creates a sword of Damocles that prohibits authors and publishers _ and readers can't read about it."

Indeed, the chill continues on our First Amendment free speech. It’s time that be stopped in its tracks.

Hot Air blog adds:

It seems to me that Congress will have to take the issue of libel tourism up and pass a law to protect American citizens from libel judgments of courts outside the US. Otherwise, our First Amendment rights are at the mercy of the most permissive courts.

Andrew McCarthy agrees:

Congress should enact law establishing a federal cause of action for this kind of intimidation — along the lines of the scheme Rachel complains of — but as to which we don't have to rely on state "long-arm" jurisdiction statutes to reach sophisticated Saudis who game the system by traveling to England to sue Americans but then claim Americans can't touch them in America. If our courts won't protect us from this kind of nonsense, our laws must — especially when the deprivation involved is something as fundamental as free speech.

Publishers Weekly notes:

Judy Platt, staff director for the AAP’s [Association of American Publishers] Freedom to Read committee, said the AAP was “deeply disappointed” by the ruling. The AAP, along with several other organizations and companies, had filed a friend of the court brief in support of Ehrenfeld. The Mahfouz case, Platt noted, is a primary explain of libel tourism in which people who feel they have been libeled in books published in the U.S. file suit in other countries with weak libel laws.

The AAP better get its members on the line to New York’s and Washington’s legislators who care about the First Amendment. Authors, and citizens, who care about the First Amendment better get on the line, too. This New York court judgment unleashes the intimidation dogs of terror financing upon us all.

Read it all at The Democracy Project.

UPDATE: If you missed this the first time I ran it, watch it now. If you've seen it, watch it again;

Comments

[john jay]

pamela:

for some time now i have been reminding people that when our sovereigns do not protect our liberties, every political theory and philosophy underpinning our system of government says that we may overthrow those sovereigns to protect our rights.

my guess is that "our sovereigns" will do very little to address the situation faced by ms. ehrenfeld.

under the long arm doctrine of the british courts, endorsed in this american court, if a blogger such as yourself earns one cent of revenue from "business" done in england, said blogger would be amenable to this kind of libel suit in an english court.

it is a chilling prospect.

my guess is, that if democrats have the congress and the while house, that "anti-hate speech" legislation, such as found in the euro union and obviously in canada where mark steyn has been hauled before the magistrates for his writings, will be proposed and passed in this country. couple that with efforts to "regulate fairness" over the radios of the nation, and we don't have much to say, do we?

i have also advocated that a situation in which we must move beyond speech to defend ourselves could develop very quickly in this country.

people scoff.

but, in my view, people had best consider these possibilities, and if they find them real in their own minds, make the appropriate preparations.

ehrenfeld silenced?

steyn silenced?

atlasshrugs silenced?

"anti-hate" legislation? further u.n. controls?

at what point, if any point, does this become intolerable? at what point do we simply become incapable of protecting ourselves from the ravages of islam? the ravages of the left? the ravages of our own rulers?

john jay
port angeles, washington

[john jay]

friends:

let me ask you a simple question.--

how do we rally ourselves to defend against the dangers posed by islam if our friends and leaders are silenced by the very real prospect of civil and criminal penalties, simply for telling us the truth about the peril we face?

how do we?

john jay
port angeles, washington

[Francis W. Porretto]

"New York State courts are not as required as federal courts to protect rights under the Constitution’s First Amendment freedom of speech."

I would not have expected this from an American jurist. I would not have expected it from an American. What happened to Fourteenth Amendment "incorporation" doctrine?

Mrs. Ehrenfeld must make this a federal case -- and all of us who appreciate her and her courage must assist her.

If the federal courts allow this travesty to stand, it will be the last straw. It will be time to resist. Indeed, it will be time to revolt.

A state that dares to silence us when under attack by persons who plainly intend our destruction is not our servant nor our protector in any non-ludicrous sense; it is wholly and baldly our enemy -- and in league with our external enemies, to boot.

The tools for bringing down an evil order are in our hands. Indeed, we have more means now than ever before in history. Sometimes we even recognize them for what they are. It's just that the "easy way," the go-along-to-get-along mentality that eschews all risk, has seduced nearly all of us into accepting progressive emasculation and the gradual removal of our rights.

Refuse to submit. Refuse to be silenced. Refuse to be herded or channeled. Above all, refuse to pay to be oppressed.

It will be difficult at times, but if you cherish freedom, there is no alternative.

[TommyG]

"New York publishers better get off their duffs and help."

What publishers - the NY Times? The paper that routinely prints national secrets and would like nothing else except to be the only paper published in the country?

[Surak]

Mr. Jay, Mr. Porretto - hear, hear. In the spirit of Atlas Shrugged, we may be coming close to no alternative to a strike. The 2008 elections will be very telling in this regard. As a country, we have two options: elect a president and congress that believe in "Liberty", "E Pluribus Unum", and "In God We Trust", or not. I think we have a good shot at success. If not - the experiment begun in Philadelphia in 1787 will have to give way to the principles proclaimed in Philadelphia in 1776.

[Davod]

How is this not a Federal matter under the commerce clause.

[john jay]

francis w. porretto & surak:

we have historical, moral, ethical, philosophical and political precedent, and ample justification.

the principles are there before us.

john jay
port angeles, washington

[Jane]

john jay, Francis Porretto & Surak: Throughout the entire west, sentiments such as yours are being expressed. Decent citizens are very close to the saturation point. These are not militants or subversives - they are ordinary folks who have lived their lives peacefully, paid their taxes, not broken any laws, and raised their children to be productive members of society. Individuals are being pushed to the limits and are increasingly coming to the conclusion that: "...if you cherish freedom, there is no alternative." Good people have been betrayed by greedy corrupt leaders who have sold their souls to Islam. The winds are changing and rightly so.

[JewishOdysseus]

Where the f@ck are all those crusading 1st Amendment New Yawk loyas who are beating down the courthouse doors as soon as some little town puts up a creche?

Why isn't this on national tv? "Arab billionaire tries to silence American woman scholar"--a natural headline!

In all seriousness, this situation requires an unorthodox media/political/legal strategy. Ms. E. and her lawyer need to bring along a cameraman, make some fiery rounds through the NY legislature, where MANY lawmakers will declaim on her behalf, then hold a well-planned and attended NYC demo, where an effigy or 2 needs to be burned, or at least a photo of the Arab villain spit on and stomped, in full view of the cameras. "This is what we think of your filthy blood-money, Mahfouz," also burn Saudi flag, chant "NO TO ARAB HATE," etc...

It's quite true, our freedoms are only as secure as we are able to secure them ourselves.

[john jay]

friends:

if the story apocryphal, it is none the less true.--

walking from a final session of the constitutional convention (which started as the articles of confederation "tweaking session"), ben franklin was accosted by an old lady, who croned accusatorily, "my good sir, i hear we are to have a republic."

"yes, madame," he replied, "as long as you can keep it."

john jay

p.s. please do not forget jefferson's admonition on the "tree of liberty" needing fed blood from time to time.