The Chronicle of Higher Education today features an article (subscription only) by Jennifer Howard on "libel tourism" and how it is starting to affect American academic publishers. In brief, libel tourism is the term for what happens when people who are criticized in a book or other publication engage in international forum-shopping to find a jurisdiction where a libel case can be brought far more easily than here in the United States. So far, the examples that have come to public attention have all involved using the United Kingdom's court system (where libel is much easier to prove than in the U.S.) to sue and get large judgments against American authors and/or publishers who don't necessarily have the money or will to fight back. As the Chronicle reports:
The recent controversy centered on a review in the fall 2007 issue of Art Journal, which is published by the [College Art] association (The Chronicle, June 18). The review was written by Joseph A. Massad, an associate professor of Arab politics in the department of Middle East and Asian languages and culture at Columbia University.
In a discussion of Palestinian Art (Reaktion Books, 2007) by Gannit Ankori, Mr. Massad alleged that Ms. Ankori had appropriated the work of Kamal Boullata, a Palestinian painter and art historian, without giving him due credit. That allegation has been made elsewhere as well.
Ms. Ankori, who chairs the art-history department at Hebrew University in Jerusalem, considered the review defamatory. She consulted British lawyers, who contacted the association. The College Art Association reviewed Ms. Ankori's assertions, consulted its own lawyers, and decided to settle.
Apparently Ankori got $75,000 out of her threatened lawsuit as well as an apology. But by the standards of the United States (i.e., the First Amendment), did Massad do anything wrong? The problem is that right now, it doesn't really matter. Howard says:
The episode is a reminder of how wide a gulf separates the United States—where First Amendment protections and jurisprudence make libel very difficult to prove—from most of the rest of the world, where protecting reputations and public sensibilities trump the right to say what one pleases. It also points to the hazards of publishing in a truly global context, where, thanks to the Internet, a journal article or monograph or blog post can be accessed almost anywhere, no matter where it was written or published.
This is not the first time foreign law has been used to attempt to erode the First Amendment freedoms of American authors. Last year, FIRE mentioned a similar situation involving the book Alms for Jihad by J. Millard Burr and Robert O. Collins. In that case, Saudi billionaire Khalid bin Mahfouz used libel law to get Britain's Cambridge University Press to agree to destroy all of its copies of the book and ask all library recipients of the book to do the same. Bin Mahfouz similarly sued American author Rachel Ehrenfeld over her 2003 book Funding Evil, and the resulting judgment against Ehrenfeld still stands in Britain. While Ehrenfeld has not had to pay so far, if she were to choose to travel to the UK, the British court could attempt to enforce the judgment against her.
The noteworthy thing about the Art Journal case, though, is that, as the Chronicle notes, "[t]he art association may be the first scholarly society in this country to have to grapple with libel tourism or forum shopping." It is unlikely to be the last, however. It is an unfortunate fact that few if any other countries in the world enjoy more of a right to speak freely than those of us in the United States, as The New York Times noted last week. Ankori's lawyer, Trevor Asserson, is quoted as saying that America's commitment to the First Amendment is "a very parochial way of looking at things" and that America "is out of step with many, many other countries."
Thankfully, it doesn't appear that American legislators are much troubled by this particular case of American uniqueness. New York State passed a "Libel Terrorism Protection Act" into law on May 1, and bills in both the U.S. House of Representatives and the U.S. Senate have been proposed that would extend similar protections nationwide. In general, the bills would prevent the enforcement in America of foreign judgments of libel that do not meet U.S. First Amendment standards.
In an age where so much printed matter ends up on the Internet, the threat to academic freedom through libel tourism is a real one. Through libel tourism, deep-pocketed foreigners with political axes to grind could threaten many institutions, from universities to think-tanks to academic presses, with the unpalatable choice of either spending tens of thousands of dollars to defend free speech in a foreign court or simply squelching the free speech and academic freedom of their students, professors, and researchers. For too many institutions without the will or wherewithal to fight the libel tourists, that decision will be all but made for them. That would truly prove an ominous development for the American ideal of unfettered free speech and academic freedom.