English Libel Law's Pernicious Impact on First Amendment Speech

Floyd Abrams published an op-ed today in the Wall Street Journal that highlights the impact of foreign law, especially English libel law, on speech in the United States. Abrams notes:

English libel law has come to have a disturbing impact on the right of Americans to speak out. England has become a choice venue for libel plaintiffs from around the world, including those who seek to intimidate critics whose works would be protected in the U.S. but might not in that country. That English libel law has increasingly been used to stifle speech about the subject of international terrorism raises the stakes still more.

As an example of the pernicious effect of English libel law, Abrams mentions the case of Rachel Ehrenfeld, who was sued for libel in the United Kingdom by Saudi banker Khalid Bin Mahfouz over her book, "Funding Evil: How Terrorism is Funded and How to Stop It," which she published in New York. According to evidence in the case, a mere twenty-three copies of the book were sold in England, but that was sufficient for a U.K. court to exercise jurisdiction over Ehrenfeld. As a result of Ehrenfeld's refusal to appear or accept the court's jurisdiction, the judge entered judgment against her in the amount of $225,000.

Ehrenfeld wisely sought a declaratory judgment in New York stating that the judgment was not enforceable in the United States because it did not comport with the First Amendment. Punting on that issue, a federal court certified the question to the New York Court of Appeals which held that the courts did not have authority to make such a finding under current New York law.

And this is where Abrams directs his powerful pen. He notes that the New York Assembly and Senate have unanimously passed a bill, aptly named the "Libel Terrorism Protection Act," that would give Ehrenfeld and others who are sued for libel abroad the right to obtain a declaration that their speech is protected under American law.

Gov. David Paterson has until the end of today to decide whether or not he will sign the bill. Meanwhile, the Ehrenfeld saga has led Rep. Peter King (R., N.Y.) to propose federal legislation which would provide similar relief.

The need for such legislation has become very real – all the more so since English libel law is increasingly being used to limit public debate about terrorism. Mr. Bin Mahfouz has personally commenced or threatened to commence at least 30 law suits in England. This tactic has served him well in obtaining libel judgments that would be unthinkable as well as unconstitutional here.

You can read the entire op-ed here.

(Note: Floyd Abrams is on the board of advisors for the CMLP.)


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