Seeking U.S. Turf For A Free-Speech Fight
By The New York Times | by Sara Ivry
Monday, April 4th, 2005 @ 8:27PM
London has become something of a magnet for libel litigants looking for a plaintiff-friendly jurisdiction. Now one defendant is taking an uncommon approach to fighting back. Rachel Ehrenfeld, the politically conservative author of “Funding Evil: How Terrorism is Financed and How to Stop It” (Bonus Books, 2005), was served last year with a lawsuit accusing her of defaming Khalid bin Mahfouz, a Saudi sheik. Instead of defending herself in England, Ms. Ehrenfeld, who is the director of the American Center for Democracy in New York, countersued in the United States. Ms. Ehrenfeld, who said she believed the original lawsuit was brought to harass her and called it a “form of terrorism,” filed an action in December in federal court for a declaratory judgment that the British ruling was unenforceable.
That same month, after failing to appear before the British judge, Ms. Ehrenfeld was found in default of Mr. Bin Mahfouz’s suit; a hearing to determine damages is scheduled for the end of April. Ms. Ehrenfeld’s lawyer, Daniel Kornstein, said he had little doubt that “if the lawsuit in England had been brought here, it would have been dismissed on American concepts of freedom of expression.” Ms. Ehrenfeld’s book was not published in England, but about two dozen copies were purchased online from there. She contends that Mr. Bin Mahfouz should fight his case against her in the United States. “I’m suing on principle. I want my First Amendment,” she said. Though Mr. Bin Mahfouz has yet to retain counsel for the case Ms. Ehrenfeld has filed, Michael Gurdak, a lawyer at Jones Day, which represented Mr. Bin Mahfouz in a previous case, disputed the suggestion that the British legal system was being exploited. “Given that Mr. Bin Mahfouz has no contacts in the United States and substantial contacts in the U.K., there is no basis to characterize much less criticize Mr. Bin Mahfouz’s decision to protect his reputation there as forum shopping,” he wrote in an e-mail message. “To any objective observer, it would be Ms. Ehrenfeld who has been misusing the courts.”
For four months, Ms. Ehrenfeld was unable to have a summons delivered to Mr. Bin Mahfouz because she did not know his precise whereabouts. Two weeks ago, a judge in New York federal court ruled she could serve Mr. Bin Mahfouz by alternate means, and last Thursday her lawyers sent the papers by Federal Express and certified mail to attorneys who have represented Mr. Bin Mahfouz on other matters. To many free-press advocates, the tactics used in the case underscore the incompatibility of the British legal system and American constitutional rights. “It’s critically important that American journalists and scholars be able to publish on topics of profound importance without having to look over their shoulders to make sure someone isn’t suing them in the United Kingdom,” said Sandra Baron, executive director of the Media Law Resource Center in New York. SARA IVRY