Libel suits are not normally associated with national security, but a case the Texas Supreme Court ruled on January 15 carries just such implications. The suit against internet journalist Joe Kaufman is a prime example of how libel law can be manipulated to stifle dissemination of information about terrorism and radical Islam.
It arises out of Kaufman's September 28, 2007 FrontPage Magazine article on the Islamic Circle of North America (ICNA), which sponsored a "Muslim Family Day" at Six Flags Over Texas. Kaufman vowed to protest the event citing, among other things, ICNA's alleged "physical ties with the Muslim Brotherhood and financial ties to Hamas."
Within days, Kaufman was sued, but not by ICNA. Rather, seven Dallas area Islamist organizations, none of them named in the article, sued Kaufman for defamation arguing they were implicated by inference since they too sponsored the event. In June 2009, a Texas appellate court dismissed the case before it could go to trial because "a reasonable reader who was acquainted with [plaintiffs] would not view Kaufman's statements as 'concerning' them." Undeterred, the seven Islamist groups asked the Texas Supreme Court for review.
In what Kaufman termed a "victory for freedom", the Court rejected their petition and let the appeals court decision stand.
This result is important for two reasons. First, plaintiffs had argued that Kaufman, as an internet journalist, was not entitled to certain procedural protections afforded traditional media defendants that make it easier for them to get libel cases dismissed before they reach the costly trial phase. In a precedential ruling, the appellate court rejected this contention finding generally that "an internet communicator may qualify as a member of the media."
Second, the lawsuit fits a growing pattern of Islamists exploiting libel law to silence critics. They file questionable suits knowing they need not win to intimidate, demoralize, and bankrupt opponents. For example, in 2006, a Saudi banker's mere threat to sue prompted Cambridge University Press to pulp unsold copies of a book on terror financing titled Alms for Jihad, and to request American libraries to remove their copies from circulation.
That this tactic of "lawfare" may have had a role in the Kaufman case, was suggested in a May 17, 2009 broadcast of Crescent Report hosted by Mahdi Bray, executive director of the Muslim American Legal Society Freedom Foundation. After personally castigating Kaufman, Bray explained, "we've got to be willing to spend our money in a court of law … and not necessarily because we're going to look for money, but … to spend our money and make you spend your money."
The appellate court found the plaintiffs could not even meet the basic requirements for proceeding. However, as a bid to use legal fees to bleed Kaufman into submission the suit was much more promising. In fact, Kaufman would almost certainly have been bankrupt well before the case was dismissed were it not for the legal and financial aid of those dedicated to defending journalists from the threat of lawfare, including the Legal Project of the Middle East Forum and the Horowitz Freedom Center.
Kaufman explained that the plaintiff's goal was to stop him from criticizing "those who wish to do harm to the United States, specifically those tied to the extremist Muslim Brotherhood." Last Friday's decision has frustrated these Islamists designs.
A Texas tradition of vigorous commitment to free speech is evident in its founding documents. The 1836 Texas Independence Constitution went even further than the First Amendment by guaranteeing an affirmative "liberty to speak" rather than simply restricting governmental interference with debate. The Texas Supreme Court's decision preserves this legacy and we should applaud it.