The New York State Court of Appeals decided today that the New York State laws are not “coextensive with federal due process requirements,” which means the New York State courts are not as required as federal courts to protect rights under the Constitution’s First Amendment freedom of speech. For those inclined to read the full decision, it is here.
New York’s Sun summarizes the judgment, “New York Appeals Court Opens Door to ‘Libel Tourism’”, but misses a few key points. First, the Sun’s report:
The case decided today, which pits a Saudi billionaire against a New York-based researcher, was a test of how New York’s courts will respond to concerns that the First Amendment rights of American authors are being undermined by libel judgments imposed abroad, especially in Britain.
Libel law in Britain is far more plaintiff-friendly than America’s libel law, and the discrepancy has given rise to a practice that critics describe as “libel tourism.” In recent years, American authors and journalists have found themselves sued by non-British nationals in British courts over articles and books published in America.
Today the Court of Appeals in Albany said that New York law did not allow the researcher, Rachel Ehrenfeld, to seek a court order saying that a British judgment against her was unenforceable under the First Amendment. The Court said it did not have jurisdiction over the Saudi financier and that Ms. Ehrenfeld’s suit to block the judgment must be dismissed.
The court’s opinion, written by Judge Carmen Beauchamp Ciparick, an appointee of Governor Cuomo, largely sidesteps any of Ms. Ehrenfeld’s First Amendment considerations.
Of “libel tourism,” the decision states: “However pernicious the effect of this practice may be, our duty here is to determine whether defendant’s New York contacts establish a proper basis for jurisdiction.”
A lawyer in Boston who has written on the case, Harvey Silverglate, said: “The New York Court of Appeals could have done a better job of protecting our Constitutional rights than it did here with this rather technical opinion.”
At issue was Ms. Ehrenfeld’s 2003 book, “Funding Evil: How Terrorism is Financed — and How to Stop It,” in which she accused a Saudi financier, Khalid bin Mahfouz, of backing organizations with alleged ties to terrorism. It is a charge that Mr. Mahfouz denies. Mr. Mahfouz sued Ms. Ehrenfeld and other researchers who made similar accusations against him in court in London. Ms. Ehrenfeld’s work has appeared in many publications including The New York Sun.
Ms. Ehrenfeld never appeared before the British court, which in 2005 ordered her to pay 30,000 British pounds, print an apology, and keep her books out of the country. Today’s ruling is in response to Ms. Ehrenfeld’s countersuit, which sought a court order blocking enforcement of the judgment.
The Court of Appeals said that a New York court had no jurisdiction to hear her countersuit against Mr. bin Mahfouz because he has few ties to New York. A lawyer for Ms. Ehrenfeld had argued that Mr. bin Mahfouz’s threats that he would collect on the British judgment were enough to give the court jurisdiction over Mr. Mahfouz. She claimed that her research and writing were hampered by the British court judgment hanging over her head.
The court’s decision today does not preclude Ms. Ehrenfeld from raising those concerns again in the event that Mr. Mahfouz actually goes to court in New York to try to collect on the judgment before she could contest it.
A lawyer for Mr. Mahfouz, Timothy Finn of the firm Jones Day in Washington, declined to comment.
Last year, Britain’s highest court, the House of Lords, made it significantly more difficult for journalists to be sued for libel. That decision came in a case against the Wall Street Journal Europe brought by another Saudi businessman.
1. The NY law, unlike say California’s, is narrowly drawn, so residents have less protections from suits decided in other jurisdictions, especially ones that may be specious.
2. New York is a world center of publishing. All its publishers are, and some already have been, subject to “libel tourism” suits from Britain’s lax laws, which require the defendant to expensively prove all allegations rather than the plaintiff to prove libel as under U.S. law. These suits are a chill upon Americans’ free speech rights, as even a few copies of a U.S. publication sold over the Internet in Britain (as were just 23 copies of Ehrenfeld’s book) opens U.S. publishers to “libel tourism” suits from Britain.
3. New York’s legislature should immediately correct its statute, to conform to the U.S. Constitution. NY publishers and others should contact Governor Spitzer, their legislative reps, and also U.S. Senators Schumer and Clinton to bring their influence to bear.
4. Rachel Ehrenfeld, meanwhile, has seen her publishing access squeezed by fear of this suit, and lost considerable opportunities to earn her living, while Americans have been denied the opportunity to read her well-researched exposes of Arab financing of terror.
As the Sun article says, maybe, if Mahfouz seeks to collect on Britain’s court judgment in a New York court, Ehrenfeld might have grounds to very expensively defend herself again, and hope the New York courts will be more willing to defend the First Amendment. The current New York statute only allows defense against “long arm” suits if the out-of-state resident has business transactions, also, within New York. Hiring New York lawyers might be construed as having such business transactions.
But, by that time, a victim of “libel tourism”, like Ehrenfeld, is bled dry, and probaly unable to defend themselves. Another victory for those who want to silence critics of Arab financing of terror.
New York’s law is, in effect, bleeding dry our First Amendment rights and protections.
New York publishers better get off their duffs and help.
“The chill continues,” said Ehrenfeld’s attorney, Daniel Kornstein of Manhattan.
Kornstein said the businessman hasn’t tried to collect on his judgment, which includes an apology and a halt on book sales. But he said the London court verdict is a threat to authors.
“That’s the danger and the risk and the problem that we tried to stress,” Kornstein said. “It creates a sword of Damocles that prohibits authors and publishers _ and readers can’t read about it.”
The AAP better get its members on the line to New York’s and Washington’s legislators who care about the First Amendment. Authors, and citizens, who care about the First Amendment better get on the line, too. This New York court judgment unleashes the intimidation dogs of terror financing upon us all.
Postscript:
A knowledgeable friend just wrote me saying the 14th Amendment applies the Bill of Rights to the states. I replied the NY court avoided the 1st Amendment issues by denying jurisdiction, a common ploy of judges to avoid hearing difficult cases. Where’s judicial activism when it’s needed. Instead we get judicial laziness.
