Lappen: Libel Wars

I had begun to write an article on this case, but have been delayed by travel and various unavoidable matters; this morning when I saw Alyssa A. Lappen's piece in FrontPage I saw that the job had been done better than I could have done it. Introducing British libel tourism:

When billionaire sheik Khalid Salim a bin Mahfouz uses the London courts to attack his critics, there is little most people can do. In dozens of cases to date, reporters and newspapers have apologized, settled or backed off completely from stories critical of bin Mahfouz. But one truth-seeker isn't backing down.

In December 2004, investigative reporter and American Center for Democracy director Rachel Ehrenfeld bucked a dangerous trend and responded to a preposterous allegation with her own U.S. lawsuit. In Rachel Ehrenfeld v. Khalid Salim a bin Mahfouz, the author seeks a declaratory judgment that her assailant could not prevail against her in the U.S. on libel charges arising from her 2003 book, Funding Evil. The case was assigned to Manhattan Federal Judge Richard Casey, who is also handling the bulk of the 9/11 lawsuits.

Ehrenfeld's attorney, Daniel Kornstein, considers her suit as important as New York Times v. Sullivan—the 1964 case in which the courts decided for the first time “the extent to which the constitutional protections for speech and press limit a State's power to award damages in a libel action brought by a public official...”

“Sullivan established the modern ground rules of libel actions and they have been in place since 1964,” says Kornstein. Those standards, very friendly to reporters and writers, have put the onus of proof on libel plaintiffs. In this case, 23 copies of a book published in America were picked up in a foreign jurisdiction, which was used to seek judgment against an American. “The question is,” Kornstein concludes, “do the Times Sullivan rules mean anything in a world so dependent on the Internet, instantaneous communication and international process that did not exist in 1964.” Do they carry the same weight they were meant to carry 40 years ago?

Among those supporting Ehrenfeld in an amici filing with the U.S. District Court in New York are Amazon.com and the American Society of Newspaper Editors. Her legal expenses are expected to top $300,000--although she has to date received no financial backing from the publishing industry. According to the friends of the plaintiff,

When a wealthy businessman succeeds in using a carefully chosen foreign forum to attack the credibility of an American investigative author and her work, it harms that author directly and immediately. It also sends an unmistakable message to other writers and publishers that scrutinizing the activities of that businessman, and others of similar resources, is a perilous legal and financial course. American authors must have a means to affirmatively counter such attacks, relieving themselves of the stigma and the financial threat posed by such foreign judgments obtained in jurisdictions lacking free speech protections.

This need is particularly urgent today. Rarely in the history of the United States have the principles underlying our First Amendment - the need for vigorous, open debate, particularly of matters of such vital public concern as the book at issue here - been more important. The energy, drive and credibility of our investigative journalists and book authors are critical to understanding and coping with international terrorism and other threats to our society. The dangers of foreign litigation against publishers, authors and journalists become more acute daily, in direct proportion to our society's increasing reliance on the Internet for dissemination of information and publications.

Bin Mahfouz, claiming the case is inadmissible because he does not live or work in the U.S., has moved for dismissal. But until August 2004, bin Mahfouz owned two New York City condominiums worth some $3.6 million and he reportedly continues to conduct stateside and New York business. Moreover, Ehrenfeld has been harassed on her own turf, and her reputation has been damaged.

Read it all. And buy a copy of Funding Evil.