Protect Our Free Speech Abroad

By The Reporter | by Kevin Mitchell
Monday, October 12th, 2009 @ 12:44AM

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Americans are being sued for libel in countries whose laws are inconsistent with free speech granted by the U.S. Constitution. The Free Speech Protection Act of 2009 (S.449) was introduced in February 2009 in response to cases such as that of Dr. Rachel Ehrenfeld’s, an academic who writes on terrorism. Her 2003 book, “Funding Evil,” triggered a lawsuit in the United Kingdom by a Saudi who claimed he was libeled. The Saudi won a judgment of $250,000 against Ehrenfeld. Sales of her book were banned in the UK, and she can no longer travel there.

The Ehrenfeld suit has been the most prominent of cases known under the general rubric “libel tourism,” in which foreign nationals, claiming to be offended by something written in the United States travel to pliant courts in third countries and obtain libel judgments against Americans, even though the allegedly offensive speech would be protected under the U.S. Constitution. S.449 would ensure libel judgments issued by foreign courts cannot be enforced in the United States unless our legal standards for libel are met.

An ominous new twist to this trend involves Joe Sharkey, a U.S. business travel contributor for The New York Times who covered a plane crash in Brazil. On Sept. 29, 2006, Sharkey was a passenger on a business jet that collided at 37,000 feet with a Brazilian 737. All 154 people on the 737 died; the seven crew members and passengers on the business jet made an emergency landing in the Once he returned home, Sharkey wrote about it in the Times and conducted interviews in which he was critical of Brazil’s air traffic control system. He defended the American business-jet pilots, who Brazil quickly charged with criminal negligence.

This September, Sharkey was served with a complaint seeking $279,850 in damages. The lawsuit plaintiff is Brazilian Rosane Gutjhar, who asserts that Sharkey offended her country’s dignity in his writings and interviews. Sharkey did not know her or mention her name at any time. But the plaintiff doesn’t have to claim she was personally libeled, only that her country was insulted. The suit is based on a Brazilian law that any citizen can claim damages for any alleged insult to the honor of Brazil in any case involving a crime. Gutjhar’s suit is based on Sharkey’s forceful reporting about Brazil’s alleged cover-up of the causes of the crash.

The accuracy of Sharkey’s commentary has never been challenged. Sharkey claims that nothing he said or was alleged to have said would constitute libel in the United States, or even come close. With Sharkey’s case, it’s clear the scope of what constitutes libel has been broadened to include insulting the dignity of a foreign country. The Free Speech Protection Act of 2009 would address that. It needs to be passed into law as soon as possible.

– – – The author is chairman of the Business Travel Coalition, based in Radnor, Pa.


Categories: ACD in the Media