By Aaron Eitan Meyer
Report on the conference "Free Speech in an Age of Jihad: Libel Tourism, “Hate Speech,” and Political Freedom":
The third and final panel of the conference was entitled “What is to be Done? Legislative Opportunities and Pitfalls” and was moderated by Jay Nordlinger, Senior Editor of the National Review, who gave a very brief introduction. Unsurprisingly, the potentially expansive topic took something of a divided nature, with a measure of contentiousness thrown in.
Andrew C. McCarthy, Director for the Foundation for the Defense of Democracies’ Center for Law & Counterterrorism, gave the opening presentation, beginning by noting the fact that there has been some judicial usurpation of what were traditionally political powers, citing the recent Medellin decision, where Chief Justice Roberts reiterated that foreign policy is properly the province of the political branches of government. However, the thrust of his presentation was on the crucial importance that the American concept of free speech, and a ‘marketplace of ideas’ plays in the battle against Jihadism.
As Mr. McCarthy put it, Jihadists seek to quell freedom of speech by narrowing the list of acceptable attitudes and avenues of inquiry, thus setting up any potential discussion firmly on their ground. The War of Ideas, in other words, would begin with a significant handicap on the part of Western Society once our traditional notion of free and wide-ranging discussion is undermined from the start.
Mr. McCarthy then mentioned the case of Dow Jones v. Jameel, wherein the Law Lords of Britain in fact brought British defamation laws somewhat closer to U.S. standards, but hastened that the Alms for Jihad fiasco was a year after that decision, raising the question as to how much the Jameel decision actually accomplished.
He then turned to the issue of Khalid bin Mahfouz, citing Richard Clark, who told the government in 2003 that bin Mafouz was funneling $3 million to Osama bin Laden. Mr. McCarthy pointed out that when Dr. Ehrenfeld’s book came out, bin Mahfouz fought hardest to avoid U.S.courts, even though it was only those courts who could have given him a meaningful chance to refute Dr. Ehrenfeld and actually collect a judgment.
Mr. McCarthy briefly discussed California’s anti-SLAPP statutes. SLAPP stands for Strategic Lawsuits Against Public Participation, predatory suits against individuals and groups for exercising their First Amendment rights. From there, he moved to the possibility of enacting legislation that would force Libel Tourists to sue in the United States, where it would be free (by virtue of our wide discovery laws), and would allow people targeted, such as Dr. Ehrenfeld, to analyze the documents of the Libel Tourist – effectively turning the tables.
The key, Mr. McCarthy went on, is to arm Americans to stave off attacks. To that end, we still need a federal statute to protect against Libel Tourism, going further than the New York statute, and perhaps including double or treble damages if the defendant can prove that the suit was brought as part of a scheme to disrupt the research of an academic. By enacting a national law, the U.S. marketplace of ideas would be revitalized, to better serve as a bulwark against Jihadism.
The Honorable Robert H. Bork spoke next, preemptively registering his disagreement with a recent article by another panelist, John J. Walsh, stating that Mr. Walsh’s article “misses the point,” in that it appears to posit that the First Amendment’s protections stop at our shores.
Judge Bork mentioned that he doesn’t care for the term ‘Marketplace of Ideas,’ calling it one of Justice Holmes’ better rhetorical moments, but alas, not one of his better analytical ones. He went further by explaining that the term seems to imply some form of moral equivalence between speech here and in countries such as Iran, and cautioning that “we’re in a struggle, not a debating society.”
Looking past the immediate benefits of proposed legislation, Judge Bork provided a cautionary admonition that even the non-enforcement of foreign libel judgments would only go so far for publishers, who would still be liable in those foreign countries. Moving on, he said that while legislation is certainly worth doing, perhaps it is not enough. He would use the likes of the Canadian Human Rights Commissions, saying that “one of the best ways of getting rid of a bad law is by enforcing it.”
Turning fully to the ultimate issue, Judge Bork stressed that we need a stronger understanding that we’re in a war, and one that could result in the submission of the West. After all, he continued, civilizations are fragile if you hit in the right place, “and our defenses so far have been feeble.”
Mr. McCarthy interjected that the term ‘Marketplace of Ideas’ wasn’t his favorite phrase either, but that we “need to make policy fully aware of all essential facts.”
Daniel Kornstein, of Kornstein Veisz Wexler & Pollard, LLC, sought-after attorney in libel tourism cases, and counsel for Dr. Rachel Ehrenfeld in her case against Khalid bin Mahfouz, spoke next. He stressed that the problem is old/new, and is at its core, “abuse of litigation.” After reminiscing briefly about his experiences as a student of then-Professor Bork at Yale Law, he stated that the real-world effect of fighting libel tourist suits is less important than the symbolic effect, that the key is “keeping the banner aloft.”
Ultimately, Mr. Kornstein said, there will be a need for an international treaty to deal with the matter, and that large companies often have assets worldwide, so that non-enforcement of foreign judgments is an impossibility.
The next speaker was John J. Walsh, of Carter Ledyard & Milburn LLP, a trial lawyer, and self-described ‘spoilsport,’ as issue was taken with his November 20 article in the New York Law Journal, entitled “The Myth of Libel Tourism.” Stressing his orientation as a trial lawyer, Mr. Walsh began by stating that he had many questions based on evidentiary concerns, though he said that he “holds no brief” for Khalid bin Mahfouz.
In a somewhat self-contradictory presentation, he then turned to a sentence in Dr. Ehrenfeld’s revised and expanded edition of Funding Evil, where Dr. Ehrenfeld said that she would challenge bin Mahfouz in England, and then changed course. Mr. Walsh mentioned that perhaps the change of course was due to the chance of a larger victory, but stated that there’s got to be a reason why nobody else has taken bin Mahfouz on. As he put it, “English law is not as monstrous as you’ve been led to believe here.”
Essentially, the hub of Mr. Walsh’s objection to the Libel Tourism Act was that he saw it as ‘unnecessary’ since enforcement can only be done through a judicial proceeding. He mentioned that Dr. Ehrenfeld defaulted in the British court, something “which has legal consequences.” Mr. Walsh believed that bin Mahfouz’ strategy is a legal one, and that people have been fighting to protect reputation since the dawning of civilization.
Mr. Walsh also noted that there is a globalization issue as well, and that it is not the business of the state of New York to decide this matter, but properly the business of the nation’s political branches. He ended by stating that we need comity, and cannot afford to be insular.
Mr. Kornstein rose to refute Mr. Walsh, noting that Judge Eady, the British jurist responsible for over 20 of bin Mahfouz’ libel judgments, is the Chief Judge of that Court, and so picks which libel cases he hears.
Perhaps not catching the subtext of Mr. Kornstein’s comment about Judge Eady, Mr. Walsh again questioned, rhetorically, why nobody has challenged bin Mahfouz in British courts. As he put it, the test for enforcement of foreign libel judgments shouldn’t be comparative law, but the evidence actually brought – not the relative burden of proof. What Mr. Walsh sidestepped was the fact that the burden of proof is an essential part of the law of evidence, directly impacting what evidence can be and is brought before the court.
In closing, Judge Bork spoke once more, reiterating that “we have a crisis of confidence,” that we are very comfortable, and that “people, a lot of people, don’t want to think” of unpleasantness.
Mr. McCarthy stressed again that we cannot afford to have legal strictures of other countries imposed upon us – echoing a jurisprudential doctrine since the days of the venerable Chief Justice John Marshall.
Mr. Kornstein closed his comments by keying into the chilling effect of allowing foreign laws to trump First Amendment rights, and asking what [else] could be the greatest harm?
One question that was posed from the audience centered on the gossamer jurisdiction being asserted by British and other courts in libel tourism cases. As the questioner continued, our own due process incorporates the minimum threshold set forth in the International Shoe decision, only after which jurisdiction can be conferred.
Despite the acrimony surrounding Mr. Walsh’s view on the subject, the third panel provided a significant perspective on the nature and reach of potential legislation in combating Libel Tourism, and indeed, Islamist Lawfare as a strategy. Though no simple resolution or comprehensive plan could be presented in a single panel, the totality of the discussion framed many of the potential benefits and pitfalls that would accompany various types of legislation enacted to counteract the problem. While a conclusive answer was outside the scope of the conference, it served to inform the audience not only of the forces arrayed against the West, but also pointed to several avenues to counteract the tactics and strategy of Islamist Lawfare, and that the ultimate response lies not in new doctrines, but stems from the core of fundamentally American values. And as such, though we may be too complacent, we are scarcely unarmed in what may very rightly be termed the current battle of civilizations.
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