February 25, 2008 — A CRITICAL First Amendment bill, the “Libel Terrorism Reform Act” is pending in both houses of the state Legislature. It was written in direct response to the Court of Appeals’ decision in the case of Ehrenfeld v. bin Mahfouz. Rachel Ehrenfeld is an Israeli-American terrorism scholar and internationally recognized counterterrorism expert. In her book “Funding Evil: How Terrorism Is Financed and How to Stop It,” she identified Khalid bin Mahfouz, banker to the Saudi royal family and one of the world’s richest men, as a leading terrorism financier. Ehrenfeld cites government documents as evidence for these particulars:
* As far back as 1996, French, British and US intelligence believed bin Mahfouz had erected a banking system to benefit Osama bin Laden.
* Bin Mahfouz’s bogus Muwafaq (Blessed Relief) “charitable foundation” fronted for several other terror groups, including Makhtab al-Khidamat, al Qaeda, Hamas and Abu-Sayyaf.
The “charity’s” head was Yassin al-Qadi, later designated by the State and Treasury Departments as an international terrorist. Bin Mahfouz responded by suing Ehrenfeld for libel – but not in New York, even though “Funding Evil” was published here. He sued in England, where libel law places the burden of proof on defendants, rather than on plaintiffs. The English court accepted jurisdiction on the dubious grounds that 23 copies of Ehrenfeld’s book had been bought there via the Internet. In a US court, bin Mahfouz would be forced to open his finances to scrutiny and be deposed under oath – neither of which he had to do when suing in England. Britain has no First Amendment to protect free speech or a free press – and it has recently seen a surge in “libel tourism” – actions by wealthy, nonresident Arabs linked to terrorism who sue in England because its law strongly favors libel plaintiffs.
Last year, English legal publisher Sweet and Maxwell reported that the number of such libel cases tripled from the year before to 13 percent of all defamation cases in Britain. Libel tourism has forced British publishers to pulp (that is, destroy unsold) five books on terrorism, and libel fears led Random House UK to drop plans to publish Craig Unger’s US bestseller, “House of Bush, House of Saud.” Ehrenfeld refused to fight bin Mahfouz in British courts; he obtained a default judgment that ordered her to destroy all copies of “Funding Evil” and pay him $225,000 in damages.
Normally, such foreign judgments are enforceable in the United States under the legal doctrine of “comity.” But Ehrenfeld sued bin Mahfouz in Manhattan federal court seeking an up-front declaration that his English libel judgment violates the First Amendment and is void here. Unfortunately, the federal court dismissed her case, ruling that bin Mahfouz lacked sufficient New York contacts for it to assert jurisdiction over him. She appealed – but the jurisdictional issue is a matter of state law, so the federal court sent the case to New York’s Court of Appeals.
On Dec. 20, that court confirmed the original “no jurisdiction” finding – completely skirting the critical First Amendment issues. But the court signaled a remedy – noting the jurisdictional issue “should be directed to the Legislature.” In response, Assemblyman Rory Lancman (D-Queens) and Sen. Dean Skelos (R-LI) introduced the bipartisan “Libel Terrorism Reform Act” to create the jurisdictional reach the Court of Appeals found lacking. Their bill would empower New York courts to assert jurisdiction over anyone who obtains a foreign libel judgment against a New York publisher or writer – and limit enforcement to those judgments that satisfy “the freedom of speech and press protections guaranteed by both the United States and New York Constitutions.” In effect, this renders all foreign libel judgments unenforceable in New York, as no court outside the United States abides by our First Amendment protections.
But this bill, if it becomes law, will do more than protect our precious First Amendment freedoms in New York. It also will serve as a template for action by Congress – and attract foreign counterterrorism scholars and journalists to our shores. Americans certainly differ about how to fight terrorism but can all agree that we can’t protect our way of life without a free press. As Rory Lancman put it: “The ability of our journalists, authors and press to expose . . . the truth is the most important weapon we have in the War on Terror.” Samuel A. Abady practiced criminal-defense and civil-rights law for 25 years.
Harvey Silverglate is a criminal-defense and civil-liberties lawyer in Boston. Copyright 2008 NYP Holdings, Inc. All rights reserved. The American Center for Democracy (www.acdemocracy.org)) is a tax-deductible, non-profit organization. Your support is important to us, and will help our work in preserving freedom & democracy.