Last week FDD’s Center for Law and Counterterrorism, directed by Andrew McCarthy, held a conference in NYC on the various ways that Islamists are attempting to restrict free speech and a free press.
Among the means now in use: violence, the threat of violence, the use of bogus “human rights commissions” that claim to be fighting “Islamophobia,” and lawsuits and the threat of lawsuits.
Those participating in the conference included Judge Robert Bork, author Mark Steyn (currently being prosecuted by several “human rights commissions” in Canada), author Rachel Ehrenfeld (who has been sued by a Saudi sheikh in London), and Ibn Warraq (who has been threatened with death for expressing his views on religion and politics). The conference was packed to overflow with more than 200 invited guests attending.
Bringing together experts to analyze the problem and share perspectives is useful and the conference was, I think, a success on this level. But we need to go beyond that and actually find solutions to these challenges.
We’re making a start – but let Andy give you just a little more background first.
There have been rampant efforts over the last few years, especially by rich Saudis, to suppress information about the use of ostensibly charitable organizations to promote Islamic terror networks. Most prominent is the “lawfare” tactic called "Libel Tourism."
Though American journalists are theoretically protected by the First Amendment when they publish information about terror financing and promotion, the Saudis have found that they can bring defamation lawsuits in venues such as England, where the presumptions of libel law do not favor journalists. That is, unlike in the U.S. where publication is protected unless a journalist has maliciously or recklessly published false information, in the U.K. the burden is on journalist to prove the truth of the allegations -- something the journalist (who often must rely on reliable but reluctant confidential sources, and who is not in a position to compel testimony about classified matters) is not in a position to do.
Saudis like Sheikh Khalid bin Mahfouz, who has been publicly identified as an al-Qaeda financier in congressional testimony by knowledgeable officials, have thus brought libel suits against journalists and academics who have sought to publish books about terror funding. The intimidated journalists, facing the prospect of litigating and losing in a foreign country, will often settle or default. As a result, for example, Cambridge University Press paid a settlement, issued an apology to Mahfouz, and pulped all unsold copies of Alms for Jihad. And a British judge entered a default judgment against Dr. Rachel Ehrenfeld, ordering her to pay $225,000 in damages, apologize to Mahfouz, and desist publication of Funding Evil -- her book, which Ehrenfeld and her publisher had not even attempted to market in the U.K.
Other journalists – and their publishers – now know the risks they face if they dare investigate such practices and put their findings into print. This is already having a “chilling” effect. In 2007, Andy became deeply involved in the issue, writing an influential Human Events article that exposed the practice of libel tourism and called for federal legislation to combat it. Even after New York's legislature began considering a new state law to reverse the result in Dr. Ehrenfeld's case, Andy continued to argue that the federal government had primary responsibility for defending core free-speech freedoms guaranteed to all Americans, not just New Yorkers, by the federal Constitution.
Subsequently, Rep. Peter King (R., NY), the ranking member on the House Homeland Security Committee, became very interested in the issue. Rep. King and his staff turned to Andy to consult on responsive federal legislation, which Andy played a major role in crafting.
Further, Andy worked tirelessly to inform the public of the most important challenge libel tourism poses for a self-determining democratic society: the suppression of information and discussion of crucial public policy matters through the intimidation not only of journalists but of publishers and sponsors of their work.
With Andy’s leadership, FDD joined forces with The New Criterion to present the conference in New York City last week, called “Free Speech in an Age of Jihadism.” In addition to Bork, Steyn, Ehrenfeld and Warraq, the conference featured Steve Emerson, of the Investigative Project; the Center for Security Policy’s Frank Gaffney, FDD’s Claudia Rosett, myself and other prominent commentators on the lawfare threat and its challenge to First Amendment protections.
At the conference, Andy gave a major speech, called “It Takes the Marketplace of Ideas to Win the War of Ideas,” which again urged federal legislation and anticipated that Rep. King would soon move the issue in Congress.
On Wednesday, April 16, Rep. King introduced the Freedom of Speech Protection Act of 2008. If enacted, it will create a federal cause of action against libel tourists who seek foreign judgments as part of a scheme to chill American First Amendment rights.
The proposal protects only responsible journalists; those who fail to adhere to standards of professionalism would still be subject to suit under American and foreign law. But, significantly, the bill empowers federal courts to declare that foreign libel judgments may not be enforced in the United States if foreign law fails to extend journalists the protections of the First Amendment.
And because it creates a new cause of action, the bill would also enable journalists to take advantage of American civil discovery rules, allowing them to depose -- and conduct other investigation of -- litigants like Mahfouz. Of course, such litigants are desperate to avoid such scrutiny – that is another reason these “libel tourists” file their suits overseas. It is hoped that this legislation, by raising the prospect of such scrutiny, will dissuade foreign suits from being filed in the first place.
Solving the problem of libel tourism through federal legislation can be critical to our ability to inform the public about the nature and sources of the terrorist threat, and to arrive at sound counterterrorism policies.
FDD continues to have a significant impact on the national security issues that matter most. Thank you for your support without which this work would not be possible.
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