Frontpage Interview’s guest today is Dan Kornstein, a lawyer who has excelled in his career in New York City for 35 years. A founding partner of Kornstein Veisz Wexler & Pollard, LLP, he graduated from Yale Law School after serving in the Vietnam era Army. In addition to a busy litigation practice, he writes frequently on law-related topics and has four non-fiction books and hundred of articles to his credit.
*FP:* Dan Kornstein, welcome to Frontpage Interview.
*Kornstein: *Thank you, I’m delighted to be here.
*FP:* I would like to discuss libel tourism with you today – and some new legislation that is helping us fight it. Let’s begin with you telling us what libel tourism is first.
*Kornstein: *Libel tourism is when a person, usually prominent and wealthy, sues an American author for libel in a country that lacks the equivalent of First Amendment protections and where the American author never took any steps to publish or market the allegedly libelous work. Foreign courts may assert jurisdiction over American authors in these cases because the publication could be read over the Internet or because a handful of copies made their way into the foreign country via Amazon.com. Libel tourists often file suit in England because the laws there are very plaintiff friendly, and libel plaintiffs can obtain judgments there that they could not obtain in the United States.
*FP:* Sounds like quite a pernicious threat to us, right?
*Kornstein: *Yes it is.* *Libel tourism is pernicious because it chills speech in the United States on important public policy issues, including international terrorism. Since American publishers and authors know that they can be sued for libel in foreign countries, they end up tailoring their work to the more restrictive free speech standards of those foreign countries. The end result is that American authors cannot work in the United States as though they are protected by the First Amendment, and the American public is deprived of information and ideas that should be heard.
*FP:* Give us an example of libel tourism in action.
*Kornstein: *Well, we have the* *Ehrenfeld v. Mahfouz case. Rachel Ehrenfeld is an American writer and expert on international terrorism who lives and works in New York City. In 2002, she published a book about terror financing, Funding Evil: How Terrorism Is Financed – and How to Stop It, which linked a wealthy Saudi financier, Khalid Bin Mahfouz, to organizations that support terrorism. The book was published and marketed only in the United States. Mahfouz sued Dr. Ehrenfeld for libel in England, and the English court asserted jurisdiction over Dr. Ehrenfeld because 23 copies of Funding Evil had entered England through on-line sales, and ABC News had posted one chapter of the book on its website, which could be accessed in England. Dr. Ehrenfeld decided not to appear in the English action because it would have been prohibitively expensive, and she did not believe that she should have to defend herself in a country where she never marketed her book. Since Dr. Ehrenfeld did not appear in the English suit, the English court awarded Mahfouz a default judgment and over $200,000 in damages and legal fees. Mahfouz never made any effort to enforce his English judgment against Dr. Ehrenfeld in New York, but instead left it hanging over her head like a sword of Damocles. Dr. Ehrenfeld in turn sued Mahfouz in federal court in New York for a declaratory judgment that his English judgment would be unenforceable in New York because English libel law provides less protection for free speech than do the U.S. and New York Constitutions. Mahfouz argued that Dr. Ehrenfeld’s case against him should be dismissed because the New York court did not have jurisdiction over him. The case ultimately went to New Yorkﾒs highest state court, the Court of Appeals, which held that existing New York law did not permit the exercise of jurisdiction over Mahfouz, but noted that the state legislature could change the law if it wanted to. In early April, the New York state legislature voted unanimously in favor of the “Libel Terrorism Protection Act,” or Rachel’s Law, which would amend New York law to permit New York courts to exercise jurisdiction over libel tourists such as Mahfouz. The bill is now with Governor Paterson, and we hope he will sign it soon.
*FP:* Expand for us a bit on the matters of litigation and legislation.
*Kornstein: *The main issue in Dr. Ehrenfeld’s New York case against Mahfouz was whether New Yorkﾒs long-arm statute, which governs whether New York courts can exercise jurisdiction over nonresidents of New York, provided a basis for jurisdiction over Mahfouz. We argued that there was jurisdiction under a provision that confers jurisdiction over nonresidents who transact business in New York. The Court of Appeals disagreed, however, and held that Mahfouz’s actions did not constitute the transaction of business in New York within the meaning of the statute. The proposed New York legislation, the “Libel Terrorism Protection Act,” does two things. First, it provides that foreign libel judgments are unenforceable in New York unless a court determines that the foreign law under which they were obtained provides as much protection for free speech as the U.S. and New York constitutions. There is already case law to this effect, so to some extent, this part of the legislation codifies existing law. The second thing the “Libel Terrorism Protection Act” does is, as I said earlier, amend New York’s long arm statute to provide jurisdiction in declaratory judgment actions over non-New Yorkers who: (1) obtain libel judgments in foreign jurisdictions over New Yorkers (or persons subject to jurisdiction in New York); (2) based on publications published in New York; and (3) the New Yorkers against whom the foreign libel judgments were obtained either have New York assets that might be used to satisfy the judgment or might have to take actions in New York to comply with the foreign libel judgment. This provision would enable a New York author like Dr. Ehrenfeld to do what she tried to do with her New York lawsuit, which is to obtain a declaratory judgment that the foreign libel judgment against her is not enforceable in New York. These types of declaratory judgments would have no effect on the foreign libel judgments in the foreign countries where they were obtained, but they would give New York authors peace of mind that their New York assets could not be seized to pay the foreign libel judgments, which in turn would alleviate some of the chilling effect. In addition to the New York legislation, U.S. Congressmen Peter King just introduced federal legislation called the “Free Speech Protection of Act of 2008” that would enable U.S. authors to sue foreign libel plaintiffs who obtained judgments against them and obtain treble damages if those foreign libel plaintiffs engaged in intentional schemes to suppress First Amendment rights. If enacted, this legislation could have a significant deterrent value. If foreign libel plaintiffs knew they could be subject to substantial financial penalties for targeting U.S. authors in foreign courts, they might think twice about suing in the first place.
*FP:* So this kind of legislation is the best way we can fight libel tourism right? Anything else?
*Kornstein: *In an ideal world, there would be treaties in which nations agreed not to entertain libel suits based on works that were not published or marketed in their jurisdictions. These types of treaties would eliminate the destinations for libel tourists. But as we all know, it can take years, if not decades, for countries to enter into treaties. In the interim, I think that the New York and federal legislation I just described are significant first steps toward reducing the harm caused by libel tourism. If both pieces of legislation are enacted, authors will not only be able to obtain declaratory judgments that the foreign libel judgments are unenforceable against them in the United States, but they might also be able to obtain remedies against the foreign libel plaintiffs.
*FP:* What would be some of the most effective ways to increase public awareness on libel tourism?
*Kornstein: *Media attention is key, and luckily, since libel tourism affects the media, there have been a lot of stories about libel tourism in the past year or so. I would also encourage any U.S. author who has been sued in a foreign jurisdiction — or has been threatened to be sued in a foreign jurisdiction — to speak out about it. There may well be numerous, unpublicized situations where U.S. authors have refrained from publishing material because they have been threatened with foreign lawsuits, but it is hard to identify these authors and their works because they have been chilled. Libel tourism has the effect of concealing itself. If more authors reveal themselves as victims of libel tourism, there will be even greater support for measures to combat it, such as the legislation I’ve discussed.
*FP:* Dan Kornstein, thank you for joining Frontpage Interview.
*Kornstein: *You’re welcome. It was a pleasure.