'Sharkey Wins Brazil Case'

What a wonderful relief for me this morning to have read that headline online. But more importantly, this is a triumph for free speech, including free speech for bloggers, and for the First Amendment in general.

A judge in Brazil dismissed the defamation and libel case against me, which stemmed from reporting and comment by me in print, on blogs and in T.V. and radio interviews after I and six others on an American-owned business jet survived a horrific mid-air collision at 37,000 feet over the Amazon on Sept. 29, 2006. The plane collided with a Brazilian 737 airliner, which went down in dense jungle, killing all 154 aboard. The severely damaged American-owned plane, which was on its delivery flight from its manufacturer near Sao Paulo, managed an emergency landing at a jungle airstrip, where we survivors were taken into custody.

As I reported from the beginning, and as the U.S. National Transportation Safety Board ultimately found, the main causes of the disaster were operational and systemic faults in Brazilian air traffic control.

My engagement with the furies in Brazil started immediately with my front-page report in the New York Times, followed by numerous interviews I did on national and international television and radio. I was astonished by the violent reactions from Brazil. Then I began reporting on and arguing the case on a blog. On the blog, I pressed for Brazil to release the two American pilots who were held for over two months while the federal police and military sought to cobble together criminal charges in an intensely anti-American environment stirred up by the authorities and the Brazilian media.

The pilots were released amid international pressure, including outrage expressed by international air-traffic controllers and pilots. But they were later charged with negligent homicide as Brazilian authorities insisted on scapegoating the Americans rather than honestly confronting the manifest crisis in Brazilian air traffic control. The two pilots remain on criminal trial, in absentia, in Brazil.

Meanwhile, I was sued for defamation and libel by a widow of one of the dead, one Rosane Guhtjar, who made wildly false allegations about what I was alleged to have written and said. The plaintiff claimed that those alleged statements about Brazilian authorities insulted her -- a woman I have never written a word about, and whose name I have never mentioned, till this minute. The lawsuit was based on the notion, very dangerous to the First Amendment in a world connected by the Internet, that a statement that may be considered offensive to a nation is also an actionable insult to every citizen of that nation.

By the way, even the most wildly false of those accusations (I was alleged to have called Brazil a "banana" and to have said that Brazil was "most idiot of all idiots") would not even remotely constitute defamation under U.S. law. This, and the fact that the lawsuit was filed in a foreign country for alleged statements made within the U.S., pushed the case out into the forefront of current First Amendment concerns in the U.S.

The concern is: If any citizen or any foreign country can successfully win damages against any American (journalist, author, blogger, scientist, social-network user, travel reviewer, etc.), for anything any American writes or says within the U.S., the First Amendment has been gravely damaged. With the Internet, anything you write or say in the U.S. is, of course, "published" everywhere in the world.

In the Brazil ruling, I am informed, the judge initially considered that I be tried in absentia, in that I never offered a defense. I did not defend because to do so would have been to lend credence to the absurd. A defense by me would have given standing to a grave insult against the U.S. First Amendment. However, because I did not offer a defense, the allegations against me in Brazil could be taken as what the judge called in his ruling a "formal true."

That is, in the absence of defense, an allegation of defamation is presumed to be formally true in Brazil. This troublesome notion, that any allegedly offensive statement is defamatory unless the defendant proves in court that it is not false, also afflicts libel law in England, by the way. In the English High Court, plaintiffs from aggrieved Hollywood celebrities to Saudi terrorism financiers have long had a field day, suing Americans for things written in the U.S. that are fully protected under the First Amendment.

Most prominent is the "libel tourism" case of the New York scholar Rachel Ehrenfeld, who lost a defamation suit to a Saudi billionaire/terrorism financier in England for true statements in a book she wrote in the U.S. on Saudi funding sources for Islamic terrorism. Dr. Ehrenfeld's case (with a little extra boost from mine) led to the passage recently of a federal law that prohibits enforcement in the U.S. of defamation judgments against Americans for speech that is protected in the U.S. under the First Amendment.

The law prohibits enforcement in the U.S. of such judgments. Of course, there is also the matter of an American's ability to travel internationally to certain countries, given an outstanding international warrant on civil or criminal conviction for defamation. Dr. Ehrenfeld, while she is protected from enforcement of the English judgment against her in the U.S., is unable to travel freely to the UK.

In my case, the Brazilian judge finally ruled that Guhtjar had a clear lack of standing to sue. "In her complaint, Mrs. Guhtjar argues that Mr. Sharkey tarnished the image of Brazil, of the Brazilian citizens and of the National Aviation and Justice, but has not established any direct connection between those statements and herself (her name, by the way, has never been mentioned by Mr. Sharkey)."

The judge also said that I had "not exceeded the freedom of speech and opinion." He noted the recent election and electoral campaigns in Brazil "which, in his view, were more spiteful than the statements made by Mr. Sharkey," I am informed in a note from counsel monitoring the case for the New York Times from Sao Paulo.

[My note here: While I was certainly hard and at times harsh on Brazilian authorities for the cover-up of the causes of the accident and for the scapegoating of the American pilots, everything I wrote or said has been shown to be accurate. And the "spiteful" comments noted by the judge are evidently a reference to comments made by others (in Brazil) and falsely attributed to me. Does anyone really think that, had I chosen to be "spiteful," I would have selected these barely-in-English words: "Brazil is most idiot of all idiots?" I think I might have come up with something a little more stinging, in standard English.]

The judge's decision in Brazil is still subject to appeal. Besides the plaintiff's lawyers in Brazil, a New York law firm retained by the Brazilians -- Grant Herrmann Schwartz & Klinger -- has abetted this folly by sending people to serve me papers at home (one of the servers falsely claimed to be a state constable). First they came to my home in New Jersey and then, just recently, another process-server arrived at our door in the dead of night at our home in the Arizona desert to serve me with notice of a criminal complaint.

Meanwhile, the judge has ordered the plaintiff to pay damages to me in the amount of $1,500 reais, which is about $883. I don't expect to ever see that, but if I do I will divide the money between donations to two stand-up groups that work tirelessly on behalf of free speech and stood up for me when I needed it: The Committee to Protect Journalists and the Reporters Committee for Freedom of the Press.

On the other hand, two other journalistic organizations that love to sound off on the Big Issues, the Columbia Journalism Review and the Poynter Institute, cravenly ran away and hid when I approached them for moral support.

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