Brendan O’Neill meets the writers and publishers who have launched a war of independence from England’s ‘notorious, repulsive’ libel laws.
Rachel Ehrenfeld doesn’t look like a fugitive. Petite, demure, and clad in the black skirt and blouse that is the uniform of New York’s working women, she sits on a leather swivel chair in her twenty-fourth-floor apartment on the Upper West Side. Her living-room window offers a picture-postcard view of New York City in all its towering, light-flickering glory. She serves chai tea and a plate of oatmeal cookies. She asks how I am coping with the cold weather. You’d never think that this woman is effectively on the run from the English legal system.
‘I cannot go to England. It’s too risky. I once visited Holloway Prison when I was researching correctional facilities, and I do not want to visit it as an inmate.’ She takes a sip of tea. Her crime? In 2004, she wrote a book called Funding Evil: How Terrorism is Financed and How to Stop It, in which she made allegations about a Saudi billionaire. The Saudi sued her, not in New York ﾖ where she lives and works and where her book was published ﾖ but in London, on the basis that 23 copies of Funding Evil were sold to residents of the UK via an online bookseller, and thus it was ‘published’ in Britain, too (1).
Ehrenfeld refused to show up for the court case, and even refused to recognize the London High Court’s jurisdiction over her (uppity New York broad that she is), and therefore lost by default. The judge ordered her and her publishers to stump up ﾣ30,000 plus costs to the Saudi. Yet while Ehrenfeld might have a twenty-fourth floor apartment in the Upper West Side, she is still a mere writer and researcher by profession (‘I don’t have a private bank or oil fields, or any friends with a private bank or oil fields’, she says), of whom the unworldly, wig-wearing lords of the English legal system might as well have demanded £30million as much as £30,000.
Now, she is legitimately concerned that if she goes to Britain she will be ‘seized’, or at least treated as ‘persona non grata, the libel defendant who refused to grovel’. She is no ordinary fugitive, then. She is a ‘free speech fugitive’, a victim of what she describes as England’s ‘libel imperialism’ and its ‘reach across the Atlantic’. Yet she is not accepting the ruling against her lying down. Instead she has spearheaded an American rebellion against English libel law – a war of independence, if you like, from English illiberalism and reaction – which has won the support of writers, publishers and senators, and which might soon get the nod from future-president of America Barack Obama himself. The end result could well be the completion of the American Revolution launched 230 years ago: full freedom from the yoke of British tyranny.
Ehrenfeld, born in Israel, has been writing about terrorism for 20 years. She is an expert on the cash trails behind terror groups, as her cluttered apartment attests: everywhere I look, book spines bearing the words ‘JIHAD’ and ‘MONEY’ and ‘EVIL’ and ‘OSAMA’ stare back at me. She has been a consultant to both the US Department of Defense’s Threat Reduction Agency and the CIA.
After 9/11, which she witnessed from this apartment in midtown Manhattan, Ehrenfeld wrote the book that would land her in boiling water: Funding Evil. She says her experience – sued in London for something she said in New York – shows the dangers of ‘libel tourism’. Judy Platt of the prestigious Association of American Publishers, which is backing to the hilt Ehrenfeld’s resistance of England’s libel laws, tells me that ‘libel tourism’ involves ‘wealthy individuals’ using ‘plaintiff-friendly foreign libel laws in an attempt to silence US-based writers’. And it isnﾒt only Saudis. In 2005, Roman Polanski, the Polish film director who lives in France, and who is literally a fugitive from the US after allegedly committing statutory rape in 1977, sued an American publication, Vanity Fair, in London. And won. In 2006, Britney Spears, the all-American celebrity, sued National Enquirer, the all-American tabloid, in Belfast (2).
It isn’t hard to see the attraction of England’s (and Ireland’s) libel laws to plaintiffs who want to challenge or upbraid or punish American publications that have dented their reputations: our libel laws are far more claimant-friendly, stringent and severe than America’s. Under English libel law, the claimant doesn’t have to prove that the allegedly defamatory statement was false, only that it was potentially damaging to his or her reputation; under American law, claimants do have to prove falsity. In America, following the ruling in New York Times v Sullivan in 1964, there is a ‘public figure defense’, which makes it difficult indeed for people in the public eye to sue for libel. In order to succeed, claimants would have to show not only that the allegations were false but that they were made maliciously or with reckless disregard for truth. In England, in an undiluted bastardization of natural justice, the claimant doesn’t have to prove very much at all; instead the burden of proof falls on the defendant to prove his own innocence.
Where England’s libel laws are weighted in favour of the claimant and his almost sacred reputation, American laws of defamation err on the side of defending writers’ and publishers’ First Amendment right to free speech. So when English libel courts issue a ruling on a book or an article written by an American and published in America – when an English judge labels American-uttered words as outrageous, scandalous, Beyond Acceptable Debate – they do far more than cause an outbreak of headaches among the writers and publishers being sued; they also implicitly interfere in America’s internal affairs, undermining from afar the First Amendment guarantee of freedom of speech and freedom of the press.
English rulings, routinely enforced by American courts on behalf of English courts, subject Americans to a kind of colonial censorship, gagging by foreign lords. Even when English rulings are not directly enforced, simply their existence can have a ‘chilling effect’ on open debate in the US. ‘Such judgments can, and do, chill the kind of reporting that US laws are designed to encourage and protect’, says Judy Platt. Ehrenfeld knows two American authors who have had contracted books canceled because publishers feared there would be libel cases in London (A Town Called Sue). ‘Just the prospect of expensive lawsuits and international humiliation can kill the kind of investigation we need [and] the investigative spirit itself’, she says.
Not for much longer. Thanks to Ehrenfeld, New York has become the first city in America to reject fully England’s ‘repugnant’ libel rulings.
After the London High Court judgment against her in 2005, Ehrenfeld, with the support of a veritable army of the great and the good of NYC – the Authors Guild, Forbes Inc, the American Society of Newspaper Editors, Amazon – launched a counterclaim in a New York court. The memorandum filed by Ehrenfeld’s lawyers said that writers should be free ‘to ferret out and publish the facts without fear of expensive lawsuits and huge judgments in foreign countries whose defamation laws and commitment to freedom of expression and public discourse are “repugnant” and antithetical and “contrary” to our fundamental public policy’. The use of the word ‘repugnant’ comes from an earlier rebellion against English libel law. In 1997, the US Maryland State Appeals Court had been asked to enforce an English libel ruling against an American citizen. But in this instance the court refused, arguing that ‘the principles of English libel law fail to measure up to the basic human rights standards and are repugnant to public policy and the constitutional ideal of free speech’.
After months and months of legal wrangling, Ehrenfeld’s counterclaim led to the introduction of the Libel Terrorism Protection Act by the New York state legislature in April this year. The Act is an enormous, historic kick in the teeth to English libel. Firstly, it forbids New York courts from enforcing a foreign libel judgement ‘unless the country where it was decided grants the same or better protection as US standards for freedom of speech’. And second, it ‘expands an individual’s ability to have a court declare a foreign libel judgment invalid in New York’ (3). This effectively means English libel rulings can no longer be enforced against anything said or written by a New Yorker or published in New York. NYC has made itself a no-go zone for English libel rulings; it has freed itself from the whack of the former colonial power’s hammer.
‘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’, said New York governor David A Paterson as he signed on the dotted line on what has become known as ‘Rachel’s Law’, after Ehrenfeld (4). Illinois has followed NYC’s lead and passed its own Rachel’s Law. More recently, a ‘Rachel-inspired’ federal law – the Libel Tourism Bill – was passed in the House of Representatives in September. There is also a Free Speech Protection Bill being debated in the Senate, which would bar all US courts from enforcing libel rulings that are ‘antithetical’ to the First Amendment. One of the great ironies of the recent outbreak of British gushing about ‘our’ new, liberal, European-style president-elect Barack Obama is that one of Obama’s first acts might be to sign in a new law that will label English libel rulings as ‘repugnant to our Nation’s fundamental constitutional values, in particular its strong protection of the right to freedom of speech’ (5). Obama may have to teach us backward Brits a lesson about what it means to be liberal.
It is fitting that New York should have led this American uprising against English libel. New York is, in Ehrenfeld’s words, ‘the capital of American publishing’. It is a city that rattles and shakes with conversation and debate, from its numerous daily newspapers to its world-famous magazines (New York and New Yorker); from the garish, head-spinning advertising in Times Square to the 9/11 Truthers I saw loitering around the World Trade Center memorial site trying to engage passers-by in debates about ‘disappearing aeroplanes’ and the density of steel. A cab driver taking me through Brooklyn pointed to a sign that said ‘Non-horn zone – $350 fine’ and said: ‘Can you believe that shit?’ Earlier this year, when some states discussed banning youth from letting their pants sag too low, NY-based lawyers and activists for the American Civil Liberties Union defended sagging pants on the basis that they are a form of expression. A city that publishes thousands of books a year and sells newspapers on every street corner, where restrictions on horn-honking (the most basic form of communication) are seen as an affront to individual liberty and where even showing your Calvin Kleins to the world can become a free speech issue, is no place for England’s severe, repugnant and punishing libel laws.
The American rebellion against English libel law has been barely discussed in Britain. Perhaps it’s just too embarrassing for us. Yet sitting in the flat where this all began, where Ehrenfeld’s refusal to kowtow to English libel law and her decision to fight back were born, it is hard not to feel part of an historic moment. ‘I was determined not to have my rights undermined’, says Ehrenfeld. ‘The American ideal of free speech and liberty emerged from the fight against British oppression more than 200 years ago. Now we find ourselves fighting against them again.’
Brendan O’Neill is editor of spiked. Visit his website here. His satire on the green movement – Can I Recycle My Granny and 39 Other Eco-Dilemmas – is published by Hodder & Stoughton in October