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The SPEECH Act Nears Closer to Reality

June 28th 2010

Contributors / Staff - Rachel Ehrenfeld
Rachel Ehrenfeld

BP CEO Tony Hayward will likely win his case if he decides to sue American reporters and media outlets for libel in England for exposing his participation in a yacht race off the British Isle of Wight in the midst of the oil spill caused by his company in the Gulf of Mexico. You see, unlike the protections of free expression guaranteed by the American First Amendment, the plaintiff-friendly British libel laws hold the right of privacy of a public figure such as Hayward above transparency and accountability to the public.

The United States has historically led the world in the protection of its citizens' rights to free speech. The introduction of a new bill in the Senate Judiciary Committee last week reinforces this role by protecting all American writers and publishers from the enforcement of foreign libel judgments, such as the British court might award Mr. Hayward.

On June 22nd, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) and Ranking Member Jeff Sessions (R-AL) introduced the Securing and Protecting our Enduring and Established Constitutional Heritage Act, or SPEECH Act. This bipartisan bill is co-sponsored by Senators Arlen Specter (D-PA), Joseph Lieberman (ID-CT), and Charles Schumer (D-NY). It will strengthen the protection of American authors and publishers from the enforcement of judgments ruled against them in frivolous and extortionate libel suits in foreign countries that do not have our protections for freedom of speech.

Such lawsuits have been often used by “libel tourists” in an effort to suppress the rights of American scholars, writers, and journalists to speak, write, and publish freely in print and on the Internet, especially on matters of national security. American writers and media outlets have been sued for libel in England, Ireland, Canada, Australia, Brazil, Australia, France, Singapore, and many other countries.

The SPEECH Act grants “a cause of action for declaratory judgment relief against a party who has brought a successful foreign defamation action whose judgment undermines the first amendment,” and provides for legal fees. These measures will help diminish the severe chilling effect such suits have already had on journalists, researchers, and the general media.

Based on New York State's Libel Terrorism Protection Act (also known as “Rachel's Law”), the SPEECH Act marks the culmination of a national campaign I spearheaded seven years ago following my own experiences as a target of libel tourism

As a researcher and writer on terrorist financing, economic warfare, narco-terrorism, and corruption, I valued and trusted the ability to publish my findings freely in the U.S. That changed with the publication of my third book, Funding Evil: How Terrorism is Financed and How to Stop It, in the United States in the fall of 2003. The book, aimed at strengthening the national security of the U.S. and the West, has had a far wider impact than I could ever have imagined.

Funding Evil exposed many funders of radical Muslim organizations, including Saudi billionaire Khalid bin Mahfouz, the former owner of the biggest bank in the Middle East, the National Commercial Bank of Saudi Arabia (NCB), and banker to the Saudi royal family. Mahfouz, who passed away last summer, had well documented official records, in the U.S. and elsewhere, of transferring some $74 million to at least two front charities for Wahhabi terrorism: the International Islamic Relief Organization, and his Muwafaq—or “blessed relief”—Foundation, which then transferred the funds directly to al Qaeda, Hamas, and other radical Muslim organizations.

Mahfouz, who lived in Jeddah, did not like the expose. He sued me for libel in London, although my book was not published or marketed there. Only 23 copies of Funding Evil were bought in England, most via the Internet, and a chapter from the book was published on the U.S.-based ABC-TV website for a short period.

Since I am an American and wrote the book in Manhattan, where I live, I refused to go to London to be tried under archaic, plaintiff friendly English laws. High Court Justice David Eady ruled against me by default, ordering that I pay Mahfouz $225,900, publish retractions, and pay for apologies dictated by him in major international newspapers.

Mahfouz notoriously exploited Britain's libel laws as a weapon in his strategy to silence his critics. Others have used this strategy, known as lawfare, but no one used it as effectively as Mahfouz. Before he died last summer in Jeddah, the Saudi billionaire used the British libel laws and courts to bully into silence more than 40 publishers and authors—including many Americans—who documented his funding of al Qaeda, Hamas, and other radical Muslim organizations. Unlike those intimidated by Mahfouz's threats or suits, I chose to fight his false claims in the U.S.

I countersued Mahfouz in the Southern District Court of New York for a declaration that Mahfouz's English default judgment was unenforceable in the U.S. because it violated my First Amendment rights. The Court said New York State's law did not allow jurisdiction over Mahfouz; in response, the New York legislature passed the Libel Terrorism Protection Act. The law allows courts to assert jurisdiction over anyone suing a New York State-based author or publisher, and restricts enforcement of judgments to those that uphold “the freedom of speech and press protections guaranteed by both the United States and New York Constitutions.”

Since 2008, Illinois, Florida, California, Utah, Tennessee, and Maryland have enacted their own versions of Rachel's Law.

But authors residing in other states are still at risk of unjustified personal and professional ruin at the hands of libel tourists, or other plaintiffs who sue in countries with low protections for freedom of speech.

Consider the case of book author and New York Times freelance travel writer Joe Sharkey, who survived an airplane crash in Brazil. The five other American passengers aboard Sharkey's executive jet survived; more than 150 Brazilian passengers and crew of the second airplane involved in the crash perished over the Amazon. Sharkey later wrote an expose in which he concluded that errors by Brazilian air traffic control had caused the accident. This conclusion was later corroborated by independent impartial investigations. Sharkey is now being sued in Brazil for defaming the “honor” of the country. The plaintiff is a relative of one of the deceased passengers of the 2006 crash. She has never met Sharkey, but claims that she felt “discriminated against” by his account of the accident. Sharkey may even face criminal charges and be tried in absentia for his accurate and necessary reporting on matters of life and death.

Other American reporters and scientists continue to face frivolous libel suits abroad, and many more refrain from writing about issues vital to our national security and public safety for fear of these kinds of suits.

Current world affairs and rapidly evolving forms of communication underscore the need for a free press. Our freedom to expose our enemies, teach and learn about science, national security, safety, finance, and other matters of public interest depend upon it.

In view of the urgent need to protect against this threat, Senators Leahy, Sessions, Specter, Lieberman and Schumer, and Representatives Steve Cohen (D-TN) and Peter King (R-NY), are to be commended for their efforts to fortify the protections the First Amendment guarantees to our freedom of expression. As this country's Founding Fathers did over 200 years ago, Congress should continue to lead the world in the fight for freedoms of expression, by passing the SPEECH Act right away.

Rachel Ehrenfeld is director of the New York based American Center for Democracy and the author of Funding Evil: How Terrorism is financed, and How to Stop It.


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