Defeating Libel Terrorism
By FrontPageMagazine.com | by Deborah Weiss
Monday, October 20th, 2008 @ 4:58AM
There are many forms of terrorism, and violence is just one of them. The non-violent, incremental strategies used to achieve the Muslim Brotherhood’s goal to “sabotage the west from within” are more insidious and more likely to be successful than violence. Though non-violent radicalism takes many forms, one of the most dangerous forms is the effort to stifle free speech through the use of foreign defamation law suits.
A main case in point is that of Rachel Ehrenfeld. She is an Israeli-American counter-terrorism expert, and is internationally recognized. In 2003, she authored the book, Funding Evil: How Terrorism is Financed and How to Stop it. In it, she asserted that Khalid bin Mahfouz, a Saudi banker and billionaire helped finance Al Qaeda. To support her claim, she cited official government documents from France, Britain, and the United States.
Rachelﾒs book was written, published, and distributed in America, and was targeting an American audience. However, through the Internet, approximately 23 books were sold in the United Kingdom. This was sufficient for British courts to acknowledge jurisdiction when Mahfouz decided to sue Rachel for defamation in the British courts.
Rachel refused to travel to the U.K. for her court appearance. She was consequently issued a default judgment. The court ordered her to pay $225,000 and to apologize to Mahfouz. Rachel sought a declaratory judgment in Manhattan’s federal court, requesting that the U.K. judgment be declared unenforceable. However, the case was dismissed due to the court’s lack of jurisdiction over Mahfouz.
Mahfouz claimed he was innocent of the charges that Rachel levied against him. Yet, he chose not to sue her in the U.S. where jurisdiction would have made more sense. This is because British and American defamation laws differ starkly. In America, free speech is protected under the first amendment of the U.S. constitution. The laws in America are pro-free speech, pro-defendant, and truth is a complete defense. A public figure cannot win a libel law suit unless he meets his burden of proof to show that the statement made was false and the author made it with ﾓactual maliceﾔ or with “reckless disregard of the truth.” Plaintiffs in America are often deposed under oath, and under discovery rules, Mahfouz could additionally have been required to make his finances open to public scrutiny. None of these rules apply in Britain.
In the U.K., defamation laws are very pro-plaintiff, tilting in favor of protecting oneﾒs reputation to the degree that it often amounts to censorship. There, it constitutes defamation to publish “a statement that would make an ordinary person modify his opinion of a person as a result of hearing or reading the statement.” The plaintiff does not have the burden of proof. Instead, the statement is presumed to be false, and the burden of proof is on the defendant to show otherwise. Defenses to defamation claims in the U.K. include the argument that you were not really the author; you did not know the statement would be published; you did not know the statement was defamatory; or the person about whom the statement was made had such a poor reputation that a negative publication would not change the average personﾒs opinion of him.
Due to these differences in law, there has been a substantial rise in the phenomenon known as ﾓlibel tourism,ﾔ where terrorism financiers and front groups forum-shop around the globe to sue in the legal system most favorable to them. With the advent of book sales through the internet, courts that would otherwise have no jurisdiction can hear cases where the subject books were bought in their country.
Law suits and threats of law suits by Mahfouz and others like him, have had a chilling effect on free speech throughout the west. Mahfouz has already sued or threatened to sue forty authors, including twenty Americans. In so doing, he has collected substantial damages, and precluded the sale and distribution of important information on terror-financing. For example, in 2006, after Mahfouz filed a libel claim, Cambridge University Press announced that it would halt the sale of all unsold copies of its book titled Alms for Jihad: Charity and Terrorism in the Islamic World, written by Robert O. Collins, a former professor of history from the University of California, and J. Millard Burr, a former State Department employee.
Subsequently, in 2007, Andy McCarthy wrote a book titled Willful Blindness. McCarthy was the lead federal prosecutor of Abdul Rachman (otherwise known as “the blind Sheik”), who was responsible for the 1993 bombing of the World Trade Center. A book distributor operating in Canada and Britain wrote a letter to Roger Kimball, McCarthy’s publisher-to-be, inquiring if the book contained any anti-Saudi or anti-terrorist content. He feared he would offend Saudis living in the U.K. and subject himself to possible lawsuits.
As a practical matter, even those who want to stand on principle rarely have the deep pockets required to defend themselves in court. The Saudis, on the other hand, have seemingly endless amounts of money with which to fund their litigation efforts.
The result of this libel terrorism is that books deemed offensive by terrorist financiers, terrorist front groups, and terrorist sympathizers, don’t get published even if true. Their money laundering, training of Wahabbi imams around the globe, distribution of hate-filled literature, and radical indoctrination of madrassa students must all go unmentioned. Even when plaintiffs don’t have a meritorious case, they know that the threat of bleeding a defendant dry can be sufficient to achieve their goal of stifling free speech. And, the threat of a law suit need not be spoken to have a chilling effect. That defamation suits initiated by radicals are increasing throughout the West is enough to make everyone in the industry take notice. Libel terrorism has indeed been successful.
The flood of libel lawsuits in foreign courts demonstrates that radical Muslims and terrorist financiers are trying to shut people up. After all, if Americans cannot talk about how terrorism operates and is funded, they cannot properly address the problem. It is therefore crucial to defeat libel terrorism, not only in order to preserve Americaﾒs free speech rights, but to maintain her national security.
In response to these events, the New York State Assembly and the New York State Senate unanimously passed the “the Libel Terrorism Protection Act” earlier this year. Also known as “Rachel’s Law,” this bill gives New York courts jurisdiction over foreigners who win defamation judgments against New Yorkers. It allows the defendant to seek a declaration that the judgment is unenforceable if the country in which it was issued does not provide the same free speech protections as the first amendment. The bill was signed into law by Governor Paterson in May, 2008, and is a victory for the publishing capital of the world.
Now, Congress wants to make protection against libel terrorism national, and toughen the consequences even further. “The Free Speech Protection Act of 2008” was introduced in the House of Representatives by New York Congressman Peter King. In the Senate, the bill was sponsored by Senator Arlen Specter and cosponsored by Senators Joe Lieberman and Chuck Schumer. This bill, if passed, will provide the same remedies as the New York State bill. Additionally, it will allow authors and publishers to counter-sue for treble damages in cases where the plaintiff filed a defamation complaint with the intent to intimidate defendants from exercising their first amendment rights. The bill is pending in both the House and Senate judiciary committees.
Unfortunately, this bill will die in committee unless Congress goes back into session before the year’s end. However, word is that after January 1, 2009 the committees will bring these bills up again, giving Congress a second chance to send them to the floor for a vote. If Congressmen and Senators work together in a bipartisan fashion, they can win this battle to preserve one of America’s bedrock freedoms and to defeat non-violent radicals in their abusive litigation tactics. In order to win the global war on terror, it is critical that authors are free to disseminate truthful information on terrorism-related issues to intelligence and counter-terrorism professionals, as well as to the public.
Let’s hope that when the New Year commences, America’s legislators will not let this important opportunity slip by.
Deborah Weiss is an attorney and regular contributor to FrontpageMag.com.