Senator Schumer’s decision Friday to add his name to those of Senators Specter and Lieberman among the backers of the Free Speech Protection Act of 2008 increases the likelihood that the measure will make its way into law in the scramble after Congress returns from summer recess but before it breaks again for the elections. It will be an uphill battle, but count us among those hoping for a success. The law seeks to counter “libel tourism,” the practice of suing American writers in foreign jurisdictions, where the libel laws are friendlier to plaintiffs. The Free Speech Protection Act would prohibit American courts from enforcing such foreign judgments, and it would allow their victims to countersue in American courts.
To understand what’s at stake, look at the case of Rachel Ehrenfeld, in whose honor it has been nicknamed “Rachel’s Law.” In 2003, Ms. Ehrenfeld, an expert on terrorism who has served as an adviser to the Department of Defense, published “Funding Evil,” a study of how terrorist networks are financed. A Saudi billionaire sued her for libel in Britain , where the burden of proof for such lawsuits is lower than in America . Though only 23 copies of her book had been sold in Britain, its court found against Ms. Ehrenfeld, ordering her to have her book pulped and to pay hundreds of thousands of dollars in damages.
The judgment of the British court cannot be enforced in America. But the cost and burden to Ms. Ehrenfeld of defending the suit sent a message to any writer, or any publisher, contemplating a book on the subject of Islamist terror. “In effect,” wrote a senior fellow at the Ethics and Public Policy Center, Stanley Kurtz, “the Internet-driven internationalization of publishing is nullifying America’s First Amendment protections.” As the capital of America’s publishing industry, New York is especially vulnerable to this threat. That’s why the State Legislature unanimously passed, and on April 30 Governor Paterson signed, a state version of Rachel’s Law. “New Yorkers must be able to speak out on issues of public concern without living in fear that they will be sued outside the United States, under legal standards inconsistent with our First Amendment rights,” Mr. Paterson said at the time.
The federal law as drafted won’t end all threats of foreign hassling of American-based journalists. We think of Mark Steyn, whose column regularly appears in these pages. Mr. Steyn spent the last year defending himself against charges brought by the Canadian Islamic Congress that an excerpt from his bestselling book “America Alone” suddenly constituted, when it was published in Maclean’s magazine, an incitement to hatred of Muslims. He was not sued in a regular court, with its legal protections and rules of evidence. Instead, he was hauled up before the Canadian Human Rights Commission, an unaccountable tribunal with sweeping powers to stamp out any speech it considers offensive. After coming in for unprecedented public criticism over the Steyn case, the commission eventually dismissed the charges against him, though a case before the British Columbia Human Rights Tribunal is still pending.
The Ehrenfeld and Steyn cases are but two examples in a trend that prompted the New Criterion magazine, along with the Foundation for Defense of Democracies, to host in April a conference on “Free Speech in the Age of Jihad.” The proceedings have just been issued as a pamphlet, underscoring that across the Western world, legal and quasi-legal mechanisms are being used to try to block open criticism of Islam or of prominent Muslims. The “findings” contained in Rachel’s Law make an articulate case for the need to pass it. “Free speech, the free exchange of information, and the free expression of ideas and opinions are essential to the functioning of representative democracy in the United States,” it says. “The free expression and publication by journalists, academics, commentators, experts, and others of the information they uncover and develop through research and study is essential to the formation of sound public policy and thus to the security of the people of the United States.” Senator Schumer, along with Senators Specter and Lieberman and their colleagues in the House backing similar legislation, including Reps. Peter King and Anthony Weiner, are taking an important step in leading the effort to pass this law.