Landing A Solid Counterpunch For Free Speech

By Canada Free Press | by Gary Reid
Sunday, June 17th, 2007 @ 7:49PM

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Last August, I wrote a CFP column about the use of British courts to advance libel claims by Arabs to shut down criticism and analysis of their activities from journalists and authors. The phenomenon even has a name, “libel tourism”, because the plaintiffs in these cases are not British citizens. They are taking advantage of a plaintiff-friendly legal system and a court that, for reasons best known to itself, wants to accept jurisdiction of these kinds of claims.

In particular, I cited the case of Dr. Rachel Ehrenfeld, the director of the American Center for Democracy, and a well-known and respected expert on terrorist financial activities. Dr. Ehrenfeld had published a book on the funding of terrorism, Funding Evil, and she named Saudi billionaire, Khaled bin Mahfouz, as a financier of terrorist organizations. Her book was published only in the United States, but 23 copies were purchased in Britain through on-line book sellers. Those few books, which were indirectly sent overseas by retailers over whom Dr. Ehrenfeld had no control, were enough for bin Mahfouz to obtain a judgment against her in the British High Court for about $226,000 U.S. dollars with interest, and with the requirement that the offending books be destroyed.

Since monetary judgments in other jurisdictions can be enforced in the United States, Dr. Ehrenfeld decided to defend by attacking the right of bin Mahfouz to use the U.S. courts for this purpose, principally on the basis that it would offend the Constitutional right of free speech, and, further, bin Mahfouz would not have succeeded if the case had been initially pursued in the U.S. courts where libel laws are defendant-friendly.

Strangely, Dr. Ehrenfeld is the only author/journalist to fight back against this erosion of American liberties through the abuse of a foreign legal system. As she has noted: “…bin Mahfouz has a long history of successful “libel tourism.” He sought and received default judgments, fines, apologies and retractions from more than 30 other writers and publishers–including major U.S. newspapers such as the Wall Street Journal, New York Times and Washington Post, none of which have reported on this case…”

Her initial application to the U.S. District Court for the Southern District of New York failed when the court declined to take jurisdiction. Disappointed, but undaunted, she appealed that decision to the Second Circuit Court of Appeals. On June 8, the Appellate court overruled the lower court and said that Dr. Ehrenfeld could proceed to bring such an action. This decision has been hailed by one prominent U.S. civil liberties lawyer as “the most important First Amendment case” of the last quarter century. But again, bizarrely, the mainstream media, which has suffered legal setbacks at the hands of bin Mahfoud and his British legal allies, has not reported on it.

If the matter ever comes to trial and Dr. Ehrenfeld is successful, the U.S. media and publishers will owe her big time. Would it be too much to ask them now to appreciate her pioneering efforts on their behalf?

Gary Reid is a freelance writer and a public affairs consultant. Gary Reid, letters@canadafreepress.com

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Categories: Free Speech & Libel Tourism