I never thought I would say this, but the “war on terror” has given us a little bit of additional First Amendment protection.
Say what?
It all started back when American author Rachel Ehrenfeld wrote a book, “Funding Evil: How Terrorism is Funded and How to Stop It,” and published it in New York. A Saudi Khalid Bin Mahfouz did not appreciate how he was portrayed in the book — as a major financier of terrorism. He filed suit in the U.K., and based on the sale of 23 copies sold in England, the U.K. court exercised jurisdiction over Ehrenfeld. She refused to appear, so the judge entered a default judgment against her for $225,000. (source)
There is a reason that Bin Mahfouz chose to file suit in the U.K. Britain’s libel laws are very favorable to plaintiffs, and they don’t have a pesky First Amendment Bill of Rights to get in the way of wealthy plaintiffs attempts to trample on others free speech rights.
Bin Mahfouz is one of the world’s most notorious libel tourists, having used or threatening to use plaintiff-friendly British courts to sue for libel at least 36 times since 2002. (source)
Ehrenfeld filed a declaratory action in New York “stating that the judgment was not enforceable in the United States because it did not comport with the First Amendment.” (source) The federal court deferred to the New York state courts, which further punted by saying that they had no authority to make such a ruling under current New York law.
The New York legislature sprang into action. Fortunately for the First Amendment, this has a dash of the war on terror in the mix. Had Mr. Bin Mahfouz been a movie star, New Yorkers would still have to worry about forum shopping oligarchs trying to stamp out critical speech by filing defamation suits in friendly countries, then domesticating the judgment in the U.S.A. Therefore, while I applaud the New York legislators who supported this bill, I know full well that if it had been Victoria Beckham or Prince Charles who brought the initial action, this never would have passed.
Now that it has passed, New Yorkers are free from international libel forum shopping. Foreign libel judgments are unenforceable in New York unless the foreign jurisdiction provides the same degree of protection for free speech as the New York and U.S. Constitutions provide. It also gives New York citizens the right to bring a declaratory action declaring foreign libel judgments null and void.
Governor Patterson, in a press release following his signing of the bill, recognized the law’s limitations.
“Although New York State has now done all it can to protect our authors while they live in New York, they remain vulnerable if they move to other states, or if they have assets in other states,” said Governor Paterson. “We really need Congress and the President to work together and enact federal legislation that will protect authors throughout the country against the threat of foreign libel judgments.” (source)
U.S. Rep. Peter King (R-N.Y.) picked up the challenge and introduced the “Freedom of Speech Protection Act” (H.R. 5814). In its current form, it allows for actions to declare foreign judgments unenforceable in the United States as well as damages for the libel defendant. (Treble damages in some circumstances).
Peter King… you are the latest First Amendment Bad Ass. Libel tourism sucks, and no matter what your motivation, your actions are a credit to your office.
