How Islamic supremacist groups like CAIR and others use the courts to intimidate and silence those who dare to speak the truth about the Islamic jihad. "The chilling effect of 'lawfare' litigation," by Alan Dershowitz and Elizabeth Samson in The Guardian, February 9:
[...] American courts are being utilised by radical Islamic groups to stifle writers through "lawfare" - the use of law as a weapon of warfare - a tactic that has had a "chilling effect" on free speech. In contrast to the British laws, American libel law favours defendants. However, plaintiffs in the US have learned to sue their critics for defamation, not with the intent to win the case, but with the hope of imposing an unaffordably high cost on criticism of their actions.A recent case is most instructive: the American Civil Liberties Union sued the government-funded Tarek ibn Ziyad academy for allegedly promoting Islam - a violation of church-state separation. TIZA counter-sued for libel over the ACLU's statement that it is a "theocratic school". On 9 December 2009 the court dismissed TIZA's counterclaim because, as a public school, it is required to show that the ACLU's statement was false and that it was also made with actual malice or a reckless disregard for the truth, which it was unable to do.
How, in TIZA's estimation, would a libel lawsuit against the ACLU - one of the strongest defenders of Muslim civil liberties in the wake of 9/11 - have had any chance of succeeding? The fact is that this case is part of a pattern of defamation lawsuits brought to silence critics of controversial Islamic organisations due to increased scrutiny post-9/11. The strategy, which has included actions such as libel tourism in the UK, often works.
Though most defamation claims are deemed baseless by US courts, the enormous cost a lawsuit imposes and the smear of bigotry it achieves has stifled legitimate discussion of some suspect behaviour. Litigation - and the threat of litigation - has prevented concerned citizens from speaking freely and stopped the publication of important information.
In 2003, Hussam Ayloush, executive director of the southern California office of the Council on American-Islamic Relations, sued the National Review for publishing an allegedly defamatory statement relating to a CAIR-sponsored event. Though NR retracted the statement, Ayloush pursued the suit, aiming, in NR's view, to intimidate and punish the magazine. The court threw out the case for lack of merit, but NR still paid more than $50,000 in legal fees.
That is a fraction of what a libel defence can cost. In 2005, the Islamic Society of Boston sued the Boston Herald and nearly a dozen others for defamation. The ISB was building New England's largest Islamic centre and the defendants were raising legitimate questions about the ISB's connections to terrorist financing and hate speech. Though the ISB dropped the lawsuit - just weeks before some of their leaders were to give sworn testimony - the defendants incurred close to $2m in legal costs.
The ISB lawsuit had even more damaging consequences. Howie Carr, a columnist for the Boston Herald, said he "know[s] the ISB lawsuit has had a chilling effect on journalists in Boston". An analysis of the articles printed in the Herald from summer 2003 to winter 2007 supports Carr's statement. Between summer 2003 and winter 2005, the Herald published 19 articles mentioning the ISB's alleged connection with radical Islamic groups. After the lawsuit began in 2005 until winter 2007, the paper whitewashed its reporting and no longer mentioned radicalism in the 20 articles that covered the ISB's activities during that period.
Before 2001, there were five documented defamation cases relating to radical Islamic groups. After 2001, that number rose sharply. Though roughly 20 cases have been identified, the extent of the problem is difficult to determine since these cases are typically settled out of court. Often, the plaintiffs have substantial resources and the defendants cannot afford the legal costs....
Dershowitz knows that the British rule is that the loser pays attorneys fees reasonably incurred by the prevailing party to a lawsuit. The ACLU (so disparaged here generally) should get its fees reimbursed in the TIZA case just by the process of submitted a request to the court that handled the case.
In US courts a prevailing defamation lawsuit defendant may sue the party who brought the original unsuccessful suit for malicious prosecution. Generally speaking, the elements of a malicious prosecution claim are that the plaintiff brought the first suit with no reasonable basis to do so. It may not be as easy as the British system, but it nevertheless is a powerful deterrent to friviolous defamation claims.
I suspect the seriousness of this lawfare problem is exaggerated. In any event, it will certainly expose the Islamic plaintiffs to serious financial consequences.
And things are even worse in many cases outside the US, where the cases have even been brought by the government against individuals or publications practicing free speech.
There have been cases in Britain, in Austria with Elisabeth Sabaditsch-Wolff, in Canada with the suit brought against Mark Steyn and Ezra Levant, and the ongoing case against Geert Wilders in the Netherlands.
Most chilling of all:
“It is irrelevant whether Wilder’s witnesses might prove Wilders’ observations to be correct”, the ‘Openbaar Ministerie’ [state prosecutor] stated, “what’s relevant is that his observations are illegal”
The truth is still a defense in America—but for how much longer, if "hate speech" laws gain more teeth?
Freedom of speech is under threat all over the Western world—its birthplace and strongest bastion.
This chills me more than the waather outside. Can free speech survive?