AEI panel on Libel Tourism and the First Amendment, AEI, March 23, 2009
Floyd Abrams, Cahill Gordon & Reindel
Bruce Brown, Baker Hostetler
Daniel Kornstein, Kornstein Veisz Wexler & Pollard
Mark Zauderer, Flemming Zulack Williamson Zauderer
Rachel Ehrenfeld, American Center for Democracy
Moderator: Richard Perle, AEI
Complete audio of the event available here (mp3).
Text summary of event available here.
"Libel Tourism" and the First Amendment
WASHINGTON, MARCH 24, 2009–A rise in libel suits brought in British courts against works published in other countries has threatened free speech in America, silenced critics of Islamic radicalism, and provoked a debate over the proper legislative response. Richard Perle, an American Enterprise Institute resident scholar, moderated a recent panel discussion at AEI on the topic.
A libel suit brought against author Rachel Ehfrenfeld over her 2003 book Funding Evil, served as the event's focus. Funding Evil prompted Khalid bin Mahfouz, a Saudi billionaire, to sue Ehfrenfeld in the United Kingdom, despite the fact that the book was published in the United States and only reached British citizens who purchased twenty-three copies over the Internet.
According to some of the panel members, potential lawsuits give pause to American publishers that wish to release books on the connections between terrorist groups and their wealthy sponsors, especially those sponsors located in Saudi Arabia. Rather than run the risk of a libel suit, publishers may instead choose to publish and promote less controversial work.
While agreeing that the U.S. needs a firm consensus on its own legal response to foreign libel judgments, the panelists disagreed over the ability of domestic legislation to affect court proceedings in foreign countries by assuming jurisdiction outside the United States.
The threat of international lawsuits has already produced legislation in several states, including Illinois and New York, while the U.S. Senate is considering a measure sponsored by Senators Charles Schumer (D-N.Y.), Arlen Specter (R-Penn.), and Joseph Lieberman (ID-Conn.) known as the Free Speech Protection Act.
"The legal systems between the US and the UK are so startlingly different that a few courts have already held here that they will not enforce libel judgments against American citizens," said Floyd Abrams, a partner at Cahill Gordon & Reindel.
"Under our law, since 1964 at least, it has been clear that when you write about a matter of public interest, if you believe what you write, or to put it negatively, if you don't write with actual malice, you're protected," said Abrams.
However, the panelists did not agree on the contours of a proper policy response–specifically, they disagreed over whether U.S. courts should expand their jurisdiction to challenge libel judgments made in foreign courts or if the U.S. should allow the current system to remain in place.
"This is an interference with the court system of another country," said Mark Zauderer, a partner at Flemming Zulack Williamson Zauderer, who claimed that the Free Speech Protection Act is "unconstitutional" because it extends jurisdiction, against established precedent, to a foreign court. Zauderer proposed as an alternative a policy that would allow American citizens sued for libel abroad to "counterattack" in U.S. courts.
"In the event that the UK judgment is brought to the United States, [Congress] could create the capacity for a plaintiff to seek damages in an American court," said Zauderer, stating that this would create a disincentive to seeking a libel suit in a British court. Zauderer also argued that individuals should face the consequences of the legal systems in other countries when operating in their territories.
Daniel Kornstein, a partner at Kornstein Veisz Wexler & Pollard, argued that such a policy would allow the danger from libel suits to continue unabated, stating that the very threat of a suit abroad would prevent small publishing houses from publishing controversial books. Abrams agreed, pointing out that the endangered nature of many American newspapers makes the threshold for risk that much lower.
Kornstein also said however that the current Senate legislation, while stemming from the right motivations, could use improvement. He argued the Senate measure should simply state, "If a foreign jurisdiction does not have the same standards as we do, then we won't enforce the judgment."
Ehrenfeld claimed bin Mahfouz's current campaign has proven the danger of doing nothing. According to her, fewer works on Saudi financing have reached publication in recent years, while bin Mahfouz has sued nearly forty-five publishers and published apologies from critics on his website.
The government could seek a middle ground, argued Bruce Brown, a partner at Baker Hostetler, by implementing a policy that would reimburse the attorney fees of American citizens sued for libel abroad.
Libel tourism used to be just an academic issue, according to Brown, who claimed that the Internet's rise and the wide scope of British judges' verdicts have increased judgments in recent years.
"It is now a common joke for British libel lawyers to say they just came from a town named 'Sue'," said Brown.
Brown argued that libel tourism highlights a real threat to the sovereignty of American law. "This case is not about exporting American law, but about importing British law," he observed. "As the Supreme Court said, that's why we fought a revolution."