Letter To Governor Paterson In Support Of The Libel Terrorism Protection Act
By Floyd Abrams
Wednesday, April 23rd, 2008 @ 6:17PM
Dear Governor Paterson:
I write to you to urge you to sign into law the Libel Terrorism Protection Act. The bill has received so much support from so many diverse sources that I will not devote much space to why it is so needed. Any proposed legislation that is introduced in January and passes both the Senate and the Assembly unanimously by the end of March must surely be in response to some truly pronounced need and that is certainly true of this bill.
Suffice it to say that American writers and publishers now find themselves in a situation in which their ability to communicate here–in our own state–in the manner that the First Amendment protects is now gravely threatened. Foreign jurisdictions–England in particular but other jurisdictions as well–are rendering libel judgments against our fellow citizens for works that are written here and that would clearly be protected here but which are being judged by legal standards abroad that our courts would find (and have already found) to be constitutionally intolerable. The case against Rachel Ehrenfeld in England by Saudi banker Khalid Bin Mahfouz is illustrative. Her book “Funding Evil: How Terrorism is Funded and How to Stop It” dealt at length with one of the most significant (and difficult and dangerous to research) topics–the funding of terrorism. The conduct of Bin Mahfouz as a possible funder of terrorism was one of many subjects in the book. The book was published here. Only 23 copies of the book were sold in England. On that purported basis, Bin Mahfouz sued there, claiming that his reputation had been significantly damaged there. Ehrenfeld (on the advise of English counsel) refused to appear and a judgment was entered against her in the amount of $225,000. There is no doubt that the English legal system provides far less protection for authors than does ours: if that were not true, our great case of New York Times Co. v. Sullivan would have been decided against the Times and the four civil rights leaders who published an advertisement decrying the mistreatment in a Birmingham jail of Dr. Martin Luther King, Jr. Yet the author of a book that was written by an American citizen here in New York was subjected to English jurisprudence notwithstanding that, as the United States Supreme Court observed over 60 years ago “[no purpose in ratifying the Bill of rights was clearer than of securing for the people of the United States much greater freedom of…expression…than the people of Great Britain had ever enjoyed.” In that context, the notion of protecting American authors from the enforcement of judgments entered against them in jurisdictions which afford far less protections for speech than do we seems as unexceptionable as the unanimous votes in the Senate and Assembly suggest.
The objections that have been voiced to adopting the bill seem to me either frivolous or, in any event, ones that should not lead you to do anything but sign the bill into law. Some have suggested that adoption of the bill would make New York the only state in the nation to have gone so far to protect their authors. That is true enough but it is always true every time a state is the first to address a social problem by adopting legislation. If you do sign the bill, we may hope that other states may later join us. If they do, as they should, they will rightly honor you for being the first Governor to sign such a bill.
It has also been suggested that this is a problem that should only be solved on an international level. That would, indeed, be a useful notion if it were possible but it is not. Our First Amendment protections are unique in the world. To say that we must wait in this State before protecting the First Amendment right of those that write here is really to say that we may never do anything at all about the problem. Why, for example, should we expect our English cousins to give up their system in favor of ours? Or what of other nations that provide even less protection than is offered in England? In any event, the First Amendment should be non-negotiable. The give and take of treaty negotiation is necssary in many areas. The visage of trading off First Amendment rights to obtain agreement on a treaty is not only an impossible one to conjure up but a distasteful one.
Some have objected to the bill on the ground that it seeks to extend jurisdiction here to a point that violates notions of due process. This is a more serious point than those I addressed above but it should not provide a basis for you to decline to allow the bill to become law. For one thing, the bill goes less far in asserting personal jurisdiction than California already does in legislation which has been applied by the Court of Appeals for the Ninth Circuit and cited approvingly by our own Court of Appeals. Moreover, the decision plainly rests with a state to decide what foreign judgments to enforce and the bill essentially deals with only that. It doe not provide for money damages but only offers a procedure by which our courts can decide whether to enforce particular foreign judgments. Finally, as David D. Siegel, our state’s greatest expert on civil procedure, has observed in the course of urging adoption of the bill, constitutional issues are routinely raised in the area of personal jurisdiction. “The shame,” he wrote in the New York Law Journal, “would be not to try.”
I could go on reviewing case after case in which what has become known as “libel tourism” has resulted in Americans having their free speech rights compromised or even destroyed. Instead, I simply want to urge you to sign the bill and thus immediately become a leader in the effort to protect all of us from being subject to laws that simply do not recognize the centrality of free speech.
cc: James Yates, Esq.