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Protecting Writers' Free Speech From Overseas Defamation Suits

Posted by Jane Akre
Monday, March 01, 2010 1:43 PM EST
Category: Protecting Your Family
Tags: Freedom of Speech, First Amendment, Defamation, Libel, Terrorism

The Newseum in Washington, D.C. and the five freedoms.


IMAGE SOURCE: Newseum Five Freedoms/ Wikimedia Commons Web site

Injury can take many forms, such as an encroachment on a writers’ livelihood or freedom of speech.

Rachel Ehrenfeld, author of Funding Evil; How Terrorism is Financed – and How to Stop It, writes in The Guardian about the book she published on the late Saudi billionaire, Khalid Bin Mahfouz.

He sued her for libel in London in 2005. By the time he passed away in Saudi Arabia last summer, he had more than more than 40 publishers and authors publish apologies and retractions, then dedicated a Web site to his “victories.”

The stories in question concerned the alleged role he and others played in funding terrorism and radical Muslim organizations, such as al Qaeda and Hamas.

Dr. Ehrenfeld writes that no British court ever aired the merits of the allegations against him. All he had to do was threaten to sue to deter the publication.

Eventually, Ehrenfeld was ordered to pay more than $225,000 in damages and legal fees to Bin Mahfouz as well as apologize and destroy copies of books. She sought protection from a federal court in New York, but the Court of Appeals ruled it lacked jurisdiction to protect Americans on U.S. soil from foreign defamation suits.

Rachel's Law

Shortly after, the New York legislature passed the Libel Terrorism Protection Act, also known as Rachel’s Law in May 2008. It protects American journalists and authors from foreign lawsuits that infringe on First Amendment rights as guaranteed by the U.S. Constitution, and gives New York residents the ability to have their day in court.

"New Yorkers must be able to speak out on issues of public concern without living in fear that they will be sued outside the United States, under legal standards inconsistent with our First Amendment rights," said Governor Paterson. "This legislation will help ensure of the freedoms enjoyed by New York authors."

Famed First Amendment attorney Floyd Abrams supports the law along with New York Senate Deputy Majority Leader Dean G. Seklos (R-Rockville Centre), the New York City Bar Association, The Authors Guild, among others.

"The truth is a critically-important component in the War on Terror," said Senator Skelos. "This important new law will protect American authors and journalists who expose terrorist networks and their financiers."

Rachel’s Law made it possible for Dr. Ehrenfeld to seek a declaratory judgment against Mahfouz.

She is the director of American Center for Democracy, The group fights for the freedom to expose and monitor threats to national security. She has been a visiting scholar at Columbia University and New York University School of Law.

The law in New York and similar ones in Illinois, California, and Florida provide some protection to writers.

Freedom of Speech Protection Act

The Senate Judiciary Committee on February 23, held a hearing on protecting writers from foreign libel lawsuits.

The Freedom of Speech Protection Act (SB 449) protects U.S. - based writers from libel judgments in foreign countries which do not have the free speech protections of the U.S. Constitution. It allows for collection of legal fees and damages for writers, authors and journalists who do not have a presence in the foreign land. Some British lawmakers have expressed strong opposition to the U.S. bill.

The British call it “libel tourism” - where foreign claimants use defamation laws to sue authors and publishers in the writers’ own country. Under British law, a contempt citation may lead to having the writers' property seized and prison for the author or publisher found in contempt.

The U.S. legislation, proposed by Sen. Arlen Specter, would deter foreign lawsuits by permitting Americans to countersue from the moment they receive papers. Writers would be able to recover damages including the amount at issue as well as damages if the foreign lawsuit is part of a scheme to suppress an individual’s first amendment rights.

The First Amendment to the U.S. Constitution of the United States guarantees freedom of speech and of the press. #

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