Floyd Abrams notes the rise of a troubling new trend:
In recent years, 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.
The case against Rachel Ehrenfeld in England by Saudi banker Khalid Bin Mahfouz is illustrative. Her 2003 book “Funding Evil: How Terrorism is Funded and How to Stop It” dealt at length with one of the most significant (and difficult and dangerous to research) topics — the funding of terrorism. The conduct of Mr. Bin Mahfouz as a possible funder of terrorism was one of the subjects discussed in the book, which was published in New York.
Twenty-three copies of the book were sold in England. On that slim basis, Mr. Bin Mahfouz sued there, claiming that his reputation had been gravely harmed.
Ms. Ehrenfeld (on the advice of English counsel) refused to appear before the English courts, and a judgment against her was entered in the amount of $225,000. At any time, Mr. Bin Mahfouz could seek to enforce that judgment. Whether or not he does, the harm to Ms. Enhrenfeld’s reputation remains real.
Abrams argues that protection against such suits, or at least liability, should be enshrined in American law. I’m strongly inclined to agree.
My only hesitation is that we want Americans to be able to sue, in U.S. courts and under the common principles of our law, for relief against damages caused by outrageous conduct by foreign governments, firms, and individuals. We can’t very well demand absolute immunity for Americans while simultaneously claiming jurisdiction over foreigners.
Is there a way to balance these interests?
