A vic­tory for free speech

The Washington Times Weekly - - Editorials -

One of the most pow­er­ful weapons Is­lamists have is the threat to use the courts to si­lence peo­ple who get in their way. That’s why it was so heart­en­ing to learn that on April 30, New York Gov. David Pat­ter­son signed into law the Li­bel Ter­ror­ism Pro­tec­tion Act, which is crit­i­cally im­por­tant in pro­tect­ing the First Amend­ment rights of per­sons who re­port fac­tu­ally about ter­ror­ism. The leg­is­la­tion is com­monly re­ferred to as “Rachel’s Law,” named af­ter Rachel Ehren­feld, di­rec­tor of the New York-based Amer­i­can Cen­ter for Democ­racy. Miss Ehren­feld, a scholar who has ded­i­cated her pro­fes­sional life to the study of ter­ror­ism, ran afoul of Saudi bil­lion­aire Khalid Salim bin Mah­fouz. Miss Ehren­feld (who has been pub­lished nu­mer­ous times in this news­pa­per) wrote in her book “Fund­ing Evil” that Mr. bin Mah­fouz was in­volved in fi­nanc­ing Ha­mas and al Qaeda; Mr. bin Mah­fouz de­nied that he had know­ingly do­nated to ei­ther group.

In­stead of su­ing Miss Ehren­feld in the United States, where she lives and pub­lishes her work, Mr. bin Mah­fouz sued in Bri­tain. Nei­ther Mr. bin Mah­fouz nor Miss Ehren­feld live there, but it is much eas­ier to prove li­bel there than in the United States be­cause Bri­tish law places the bur­den of proof on the de­fen­dant rather than the plain­tiff. That’s why peo­ple known as “li­bel tourists” look for the small­est con­nec­tion to Bri­tain in or­der to ob­tain a pre­text to file suit there. In this case, Mr. bin Mah­fouz cited the fact that a small num­ber of copies of her work had been pur­chased in Bri­tain us­ing Ama­zon.com, and the fact that a chap­ter of the book ap­peared on the In­ter­net where it may have been seen by Bri­tish read­ers. In May 2005, a Bri­tish judge ruled that Miss Ehren­feld must apol­o­gize to Mr. bin Mah­fouz, pay more than $225,000 and de­stroy copies of her book. It would be dif­fi­cult to imag­ine a rul­ing more detri­men­tal to the First Amend­ment.

But Miss Ehren­feld is noth­ing if not a fighter, so she sought re­lief from the rul­ing in state and fed­eral courts in the United States — with mixed re­sults. In one case, New York state’s high­est court ruled that it could not pro­tect Miss Ehren­feld from Mr. bin Mah­fouz’s Bri­tish law­suit judge­ment. But Miss Ehren­feld won a vic­tory in the 2nd Cir­cuit U.S. Court of Ap­peals on June 8, 2007, when the court ruled that her case against Mr. Mah­fouz’s li­bel ver­dict was valid and that she could ap­peal to re­lief from Amer­i­can courts in or­der to stop the Bri­tish court ver­dict from be­ing en­forced here. Lost in the li­bel de­bate was the reve­la­tion last sum­mer (re­ported on this news­pa­per’s Op-Ed page last year by Ji­had Watch di­rec­tor Robert Spencer), that a Septem­ber 13, 2001, note from France’s for­eign intelligence agency said that in 1996 Mr. bin Mah­fouz was one of the ar­chi­tects of a bank­ing scheme con­structed for the ben­e­fit of Osama bin Laden — a point that makes the Bri­tish li­bel ver­dict against Miss Ehren­feld ap­pear even more ridicu­lous.

Rachel’s Law would de­clare over­seas defama­tion judge­ments un­en­force­able in New York courts un­less the for­eign defama­tion laws pro­vide the same guar­an­tees pro­vided pur­suant to the U.S. Con­sti­tu­tion. “New York­ers must be able to speak out on is­sues of pub­lic con­cern with­out liv­ing in fear that they will be sued out­side the United States, un­der le­gal stan­dards in­con­sis­tent with our First Amend­ment rights,” Mr. Pat­ter­son said in sign­ing the leg­is­la­tion into law. Last week, Sens. Joseph Lieber­man, Con­necti­cut Demo­crat, and Arlen Specter, Penn­syl­va­nia Repub­li­can, along with Rep. Peter King, New York Repub­li­can, in­tro­duced leg­is­la­tion that would in essence ex­tend “Rachel’s Law” pro­tec­tions to res­i­dents of all 50 states. That’s some­thing Congress should be­gin care­fully con­sid­er­ing right away.

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