Saturday, November 07, 2009

A Crusade (Oops, That Word) Against Libel Tourism -- And Why Americans Who Value Free Speech Should Saddle Up

"Libel tourism" is the label used to describe libel lawsuits filed in a foreign country, by a foreign plaintiff, against Americans for writings or speech in the United States that are fully protected under the U.S. Constitution.

The mainstream media in the U.S. have been reluctant to examine the phenomenon much -- not, I suspect, out of any genuinely held convictions (God forbid) but rather because it's complicated, messy and off-narrative. Shield laws protecting card-carrying journalists' important rights to protect sources, that's the official narrative.

Shield laws are important. Libel tourism, on the other hand, is the most egregious threat ever to free speech in this country. Maybe because it affects all of us, not just establishment journalists, it's off the domestic media radar-screen.

It certainly affects bloggers.

In libel tourism cases (disclosure: I am currently being sued for libel in Brazil is one such case), someone in another country who doesn't like something written or said in the United States conveniently finds a friendly foreign court to handle their grievance. Said foreign court -- Britain is the best example of pliant courts for libel-tourism -- harrumphs and snorts and finds in favor of the plaintiff against an American exercising his or her right to free speech in the United States.

Viola! A foreign court and a foreign plaintiff have neatly done what no nefarious force within the United States has ever done -- brazenly reached into the U.S. in violation of the First Amendment to the United States Constitution. American defendants are duly served at their homes in the U.S. by American law firms working on behalf of the foreign plaintiff, judgment is ultimately rendered, and legal proceedings are then launched to enforce a foreign court judgment in the United States. The American defendant is then left to fend for himself or herself.

So far, foreign monetary judgments in libel-tourism cases have not been enforced, but there is no absolute guarantee that they won't be, as foreign governments dicker with U.S. state and federal legal systems and look for ways, like trade agreement laws, to sneak under the tent.

But now, at the very least, a foreign judgment against an American citizen in a libel tourism case creates financial burdens. It also limits the ability of that citizen to travel internationally to the place where the judgment has been rendered -- in most cases Britain, so far. For example, Rachel Ehrenfeld, an American who lost a libel-tourism case in the UK, and whose academic work often involves international travel, is unable to travel to Britain because of the judgment against her.

And in time, given shifting international treaties, protocol alliances, and the drive to apply so-called universal law, having such a judgment hanging over you could severely limit an American's ability to travel internationally in general.

The most prominent example of libel tourism is the case of Dr. Ehrenfeld, an author and academic expert on terrorism financing. She lost a libel suit filed against her in the UK by a wealthy Saudi tycoon, Khalid bin Mahfouz, who objected to a few brief mentions of himself as a financial backer of Al Qaeda in Ehrenfeld's 2003 book, "Funding Evil: How Terrorism Is Financed -- And How to Stop It."

In a suit that would have never been considered by a U.S. court, Mahfouz (who died in August) readily prevailed in the British High Court, ground zero for those seeking easy-as-pie libel verdicts.

Outrage over the Ehrfenfeld case prompted New York State to adopt a law in 2008 protecting residents of New York (which Ehrenfeld is) from enforcement of foreign libel judgments in cases where the alleged offense is "inconsistent" with the principles of American free speech.

Several other states, including Florida and California, have since adopted similar laws, and a federal law called the Free Speech Protection Act of 2009 is now pending in the Senate Judiciary Committee, after being introduced by Sen. Arlen Specter with Sens. Schumer, Lieberman and Wyden as co-sponsors. That bill, along with a similar one pending in the House, where it was introduced by Rep. Pete King, would make it impossible to enforce in the U.S. a foreign libel judgment that is inconsistent with the U.S. First Amendment.

I wish I could say that the bills are merrily rolling along to legislative reconciliation and thence to the President's desk, but that's not the case. Sen. Patrick Leahy, the chairman of the Judiciary Committee, has not yet shown sufficient interest in the matter to provide evidence that the bill will move forward any time soon.

And the State Department, notoriously timid about treading on the legal toes of friendly countries whose good offices might be necessary on unrelated delicate matters, has so far kept its distance or, worse, signaled its distaste for the lack of diplomatic comity that might ensue if the U.S. government were to tell, say, the British High Court to take a jolly good hike along with its spurious libel judgments.

Another prominent libel tourism case involves an American investigative reporter and academic named Paul Williams, who is being sued by McMaster University in Canada under Canadian libel laws for reporting he did on a terrorist cell. Like Dr. Ehrenfeld's, the Williams' case could not have been brought in a U.S. court.

Dr. Williams, who lives in Pennsylvania and published the alleged offenses in the United States, told me last were that he and his wife have personally spent about $100,000 so far in his defense against the Canadian action. In all, the Williams defense (the trial is forthcoming) has so far cost nearly $500,000, he said.

And then, of course, there is me.

In an action that still has lawyers shaking their heads in amazement, I am being sued in Brazil by a person who claims that my reporting and commentary following the horrific 2006 mid-air collision over the Amazon (in which 154 died) caused her to "feel discriminated against" as a citizen of Brazil. That's apparently because I forcefully challenged Brazilian authorities in their disgraceful rush to immediately criminalize the accident (against all protocols of international aviation), to cover up and fail to address the principal cause of the accident (operational and systemic errors in Brazilian air-traffic control over the Amazon), and to scapegoat the two American pilots who brought the surviving and badly damaged American business jet down in an emergency landing in the Amazon with me and four other passengers on board.

Besides the startling change in venue to a different continent, the major twist in the Brazil libel-tourism suit is that I had never heard of, let along said or wrote anything about, the plaintiff until she filed the suit. The complaint is based on the amazing legal notion that a citizen of Brazil can claim injury if she or he feels offended by anything written or spoken -- by anywhere in the world -- about that country. Even if, as in this case, the plaintiff was never mentioned or in any way referred to.

By the way, the examples of my alleged offense to the dignity of Brazil ("most idiot of idiots" is one alleged comment) cited in the complaint did not come from me. We've been able to trace the genesis of the allegedly actionable quotes back to comments made by others either in the Brazilian news media or on Brazilian blogs or onlilne comments that linked to the blog on Brazil that I started right after the accident and discontinued almost two years ago. Or in some cases, the allegations appear to have been created out of thin air.

But, as I said at a meeting last week with Judiciary Committee legal staffers and other prominent First Amendment experts, this is not about me. Nor is not about Rachel Ehrenfeld or Paul Williams.

It's about all of us.

If a foreign court can reach across U.S. borders to punish, intimidate or otherwise seek to silence Americans for speech that is fully protected under the First Amendment, we have effectively lost freedom of speech.

This doesn't just potentially affect book writers and journalists. It also affects academics, researchers, bloggers, policy makers, travel reviewers, medical authorities, scientists debunking charlatans, and casual users of social networks. It potentially affects anyone who might be flushed out within U.S. borders by a foreign court for the alleged offense of failing to genuflect to the sensitivities of some aggrieved foreign entity.

Somebody in Iran (or North Korea or Somalia or Switzerland for that matter) doesn't like what you wrote or said in the U.S.? Sue! So far, the U.S. government has rolled over and pretended not to notice the threat.

If you sense a crusade being launched here (Oh. My. God. I used that word, considered actionable in some parts of the world), you are correct.

Incidentally, here's the latest update on British libel tourism from the Times of London.

Oddly, the Times of London article neglects to mention the Ehrenfeld cass, the most prominent of the UK libel tourism examples. Oh, wait, hmmm. Rupert Murdoch's News Corp., which owns the Times of London among other worldwide media properties, is in negotiations with the Saudis to buy a chunk of a big Saudi media empire that currently carries News Corp.'s Fox News.

We're gonna need a scorecard.


1 comment:

paleolith said...

Your link to the Times is 404.