I am posting this on behalf of analyst Jennifer White:
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Money Talks: Truly Deterring Libel Tourism
By Jennifer White
During my days working as an attorney on large Wall Street financial cases, one of my mentors said, as I pondered the organizational review of what I knew would be tens of thousands of pieces of paper: “follow the money.” While undoubtedly there have been several equally wise words that I have not taken to heart, that comment has never failed to cut to the kernel of any given matter I have worked on, whether be it worth hundreds of millions or a few thousand dollars.
“The Free Speech Protection Act of 2009” has been introduced in both the House and Senate, (S. 449 introduced by Senators Lieberman and Specter on February 13, 2009 and H.R. 1304, introduced by Representative King on March 4, 2009), specifically to staunch the pernicious practice of libel tourism.
Libel tourism is a tactic used by radical Islamists and their supporters to muzzle information about their activities. Specifically, libel tourists file suits in foreign courts (generally in which they have little or no connection) in order to advantage of that jurisdiction’s law and procedure. England has been a favored spot for these suits as speech is far less protected in England than under our First Amendment, and in English courts, the burden of proof lies on the defendant.
The danger of libel tourism should never be underemphasized. Libel tourism at the heart of lawfare, or the ways in which radical Islamists use our laws against us. Lawfare, a far more subtle foe than groundfare, has already substantially furthered the radical Islamist agenda.
June 15 of this year, the House enacted H.R. 2765, “The Free Speech Protection Act of 2008.” While symbolically important, it utterly fails as a true deterrent to libel tourism. H.R. 2765 prevented courts from recognizing foreign judgments that conflicted with the First Amendment, but stopped short of providing those harmed by libel tourism with a separate cause of action. Both H.R. 1304 and S.449, on the other hand, contain three provisions absolutely crucial if we truly wish to deter libel tourism: 1) the creation of a federal cause of action that the harmed U.S. person can bring; 2) damages should the harmed U.S. person prevail in his or her action; and 3) the possibility of treble damages.
Money talks. Libel tourism was pursued in earnest in response against New York based author Rachel Ehrenfeld for her 2003 book “Funding Evil: How Terrorism is Financed and How to Stop it.” Dr. Ehrenfeld was sued in England by Khalid bin Mahfouz, a Saudi billionaire featured in her book, which, among other things, detailed the Saudi money trail financing the radical Islamist agenda. The British court, applying English law, found for Mahfouz, and issued a default judgment against Ehrenfeld. Bin Mahfouz died August 16, but the practice of libel tourism lives on.
New York state responded to the default judgment entered against Ehrenfeld by enacting a law that prevented New York state courts from recognizing foreign libel judgments that are inconsistent with the First Amendment, referred to as “Rachel’s law.” Illinois and Florida have passed similar laws and California is poised to do so.
The 2008 predecessor to the bipartisan 2009 House and Senate “Free Speech” bills is virtually toothless as a true deterrent. While symbolically important, the law merely allows the non-enforcement of foreign defamation judgments the U.S. if the expression in question is not a violation of the First Amendment. As a number of federal courts had already reached this conclusion, H.R 2765, in fact, merely codified what a number of federal courts had already decided.
Notably, the merry band of Saudi libel tourists (of which bin Mahfouz was a leader) did not appear to give the introduction of The Free Speech Protection Act of 2008 much thought. Records reveal that little, if any, real lobbying done by the Saudis to prevent its passage. And really, why should they have bothered? Without the ability of their victims to bring a cause of action against them and collect damages, what risk were they really running by continuing to suppress the truth?
The Freedom of Speech Act of 2009, however, presents a whole new ballgame, one with real consequences for the Saudis who have, in the words of one Member of Parliament, made libel tourism an “international scandal” and a mockery of the British courts – continuing their game will likely result in large damage awards against them.
Both H.R. 1304 and S. 449 appear stalled in committee – in both cases the House and Senate Judiciary Subcommittees on Courts and Competition. For actual protection against libel tourism, the critical pieces of The Freedom of Expression Act of 2009 must stay in place –the ability for the harmed U.S. person to bring an action and the corresponding damages provisions. bin Mahfouz’s son, Abdulrahman, who engaged in serial libel tourism with his father, appears ready, willing and able to continue the practice. Without the crucial protections of the Free Speech Act of 2009, this bipartisan legislative intiative will turn into yet another symbolic, but toothless, weapon against libel tourism.
Notably, a Saudi initiative to prevent the Freedom of Speech Act of 2009 from passing is newly in place. According to a Member of Parliament who has asked that the British Law Society look into this issue, Shillings is one of the two most active British law firms acting on behalf of libel tourists. Shillings recently teamed up with a prominent D.C firm, one without any involvement in any previous libel tourism suits, but one with an active practice on the Hill, to “investigate” the issue. Already “seminars” on the issue of libel tourism are planned in the District as well as in London. (London appears necessary as various members of Parliament are beginning to express concerns about the issue.)
Money talks. And it speaks in various ways. As my partner meant long ago and Ehrenfeld experienced first hand, money talks by revealing information about alliances, sources and other information. In recent years this has proven vital to our national security, as so aptly demonstrated by Ehrenfeld and others.
Money also talks in that its use influences outcomes. We cannot allow money to talk its way out of the passage of the Freedom of Speech Act of 2009. As Representative King stated: “Our journalists provide us with insight on issues that affect all Americans, such as war and terrorism…We cannot allow their voices to be silenced by those who prefer to keep secret the inner details of these issues.”