The High Cost Of Free Speech

By San Diego Jewish World | by Dr. Rachel Ehrenfeld
Saturday, June 16th, 2007 @ 9:50PM

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NEW YORK—On June 8, 2007, seven months after hearing arguments in my suit against Saudi billionaire Khaled bin Mahfouz—Ehrenfeld vs. bin Mahfouz—the U.S. Second Circuit Court of Appeals established an important legal precedent, henceforward affecting all American writers and publishers. This “case is one of the most important First Amendment cases of the past 25 years,” says prominent civil rights attorney and 30-year American Civil Liberties Union of Massachusetts board member, Harvey Silverglate. Ironically, the potential of many foreigners suing U.S. reporters and publishers for libel “to do grave damage to free press” is “not yet readily recognized,” he adds.

The case concerns my countersuit against the Saudi who sued me for libel in the U.K. because my book Funding Evil includes details of his financial support to al-Qaeda and Hamas. In November 2004 , bin Mahfouz — a Saudi citizen, not British —sued me for libel for reporting these and other “inconvenient” facts. Bin Mahfouz would enjoy no success were he to sue me for libel in U.S. courts. My facts are based on official documents, and thereby establish that through his “Muwafaq Foundation,” managed by U.S.-designated terrorist Yassin al-Qadi, bin Mahfouz financed Hamas, al-Qaeda, and other Islamic terror organizations. Indeed, the alleged terrorist financier is also a defendant in all federal lawsuits filed by the 9/11 victims.

But British libel laws, based on the Libel Act of 1819, do not encourage free speech. These draconian statutes include clauses prohibiting “blasphemous libel.” They also place the burden of proof on the defendant—who need not have been malicious. Reporters and publishers must prove the accuracy of their work—and defense witnesses must produce primary evidence. In my case, even if U.S. officials would testify for me, they’d need to produce classified documents available only to those with U.S. national security clearance. Intended to be democratic, Britain’s libel laws are exploited almost exclusively by wealthy individuals.

In Britain’s High Court, bin Mahfouz’ success in a libel case against me was all but preordained. After all, bin Mahfouz has a long history of successful “libel tourisim.” He sought and received default judgments, fines, apologies and retractions from more than 30 other writers and publishers—including major U.S. newspapers such as the Wall Street Journal, New York Times and Washington Post, none of which have reported on this case or the enormous significance of last week’s Appellate Court decision. I refused to acknowledge the lawsuit: British libel laws stand American principle on its head.

Thus, British High Court Justice Eady, who granted bin Mahfouz many other default judgments, awarded another one to the Saudi, in my case. In September 2005, he ordered me to pay ᆪ114, 386.52, in fines and expenses, which at today’s exchange rate is $225, 913.37 plus interest. He ordered my books physically destroyed; they were published only in the U.S. —the 23 copies sold in Britain were purchased online or by special order. Since the 1965 Uniform Foreign Money-Judgment Recognition Act allows the enforcement of foreign monitory judgments in the U.S., bin Mahfouz intends to act. One of his agents appeared late one evening at my door, advising me to “You had better respond. Sheikh bin Mahfouz is a very important person and you ought to take very good care of yourself.”

I countersued him in N.Y., asking the Federal Court to declare the default judgment against me and my book obtained by bin Mahfouz in England’s High Court as unenforceable in the U.S., and contrary to the free speech protections Americans enjoy. It is especially significant, therefore, that the Second Circuit Court of Appeals overruled the U.S. District Court for the Southern District of New York in requesting that the state’s highest court determine whether bin Mahfouz should personally be subject to New York jurisdiction. The Second Circuit’s decision went further, ruling that my claim is “ripe,” and therefore can be brought before a U.S. court. Thus, every American writer and publisher, finding themselves in a similar situation, can now seek a U.S. court decision. When and if the New York Supreme Court decides that there is jurisdiction over bin Mahfouz, my case would proceed on its merits. This would allow me to take pre-trial “discovery” of bin Mahfouz’s financial activities to further confirm the accuracy of my reporting on him in Funding Evil. Stay tuned.

— Dr. Rachel Ehrenfeld is director of the New York based American Center for Democracy. Here is a link to her website.

Categories: Free Speech & Libel Tourism

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