Uniting To Protect The First Amendment
Fri, 05/02/2008

Last December, The Jewish Week published an Opinion piece titled "Last Stop On The Libel Tour," in which I discussed a lawsuit that few people had heard of and almost nobody seemed to care too much about. The suit between Rachel Ehrenfeld and Sheikh Khalid Salim bin Mahfouz had proceeded virtually off the media radar. I only learned of it when researching defamation lawsuits initiated by individuals accused of involvement in terror financing.

You may recall the background of the case, which has since attracted much publicity. Ehrenfeld, a dual Israeli and American citizen, authored the book "Funding Evil," in which she presented evidence that Mahfouz, a Saudi citizen who ranks among the world's 300 richest people, financially supported terrorism. When Mahfouz sued Ehrenfeld for libel in London's High Court of Justice in 2005, the Court awarded him $225,900 and ordered Ehrenfeld to publicly apologize and destroy all copies of her book. Since Ehrenfeld had neither published nor distributed the book in the United Kingdom, she refused to participate in the British trial or comply with a judgment she felt violated her rights as an American.

She then brought her case before an American court seeking a declaration that Mahfouz could not prevail on a libel claim under the laws of New York and the United States, thereby preventing him from collecting on the judgment. Ehrenfeld argued that the judgment in the British case is not enforceable in the United States because British law does not offer the same free speech protections as U.S. law does. However, the New York State Court of Appeals, the highest court in the state, ultimately ruled against Ehrenfeld on procedural grounds because Mahfouz did not have sufficient ties to New York for its courts to have jurisdiction over him. As things presently stand, Mahfouz can still seek to have the British judgment enforced in the United States.

This case is important because it affects the ability of all American writers and journalists to exercise their First Amendment right to free speech. Ehrenfeld represents writers everywhere who are increasingly at risk of being silenced for fear of being sued in U.K. courts for libel where their laws do not provide the same constitutional protections that Americans value.

Yet little had been done to support Ehrenfeld - until New York State Assemblyman Rory Lancman (D-Queens) read the Op-Ed in the Jewish Week about her case. He called me the day after the article came out telling me that he wanted to introduce legislation to remedy the problem.

And so, the "Libel Terrorism Protection Act" was born. Lancman teamed up with Senate Deputy Majority Leader Dean Skelos (R-L.I.) and introduced the legislation on the steps of the New York Public Library on January 13.

Unfortunately, Ehrenfeld is fighting an uphill battle. The United States Court of Appeals for the Second Circuit recently also ruled against Ehrenfeld for the same reasons as the New York State Court of Appeals. The Second Circuit refused to wait for passage of the Libel Terrorism Protection Act even though, if in force, it would likely have affected the court's decision in Ehrenfeld's favor.

Ehrenfeld's defeat in both Courts of Appeal reinforces the urgent need for this legislation to be made into law. The Libel Terrorism Protection Act would amend New York's so-called "long-arm statute" and allow state courts to have jurisdiction over foreign libel plaintiffs. The Act would also allow courts in the United States to declare foreign judgments unenforceable if the courts find that the libel laws in foreign countries do not protect the freedom of speech and the press as fully as New York and the United States.

The bill has passed the New York State Senate, and soon will be sent to the floor in the Assembly. However, as the public waits for the legislature to pass the bill and the governor to sign it, the threat to our First Amendment freedoms persists and only encourages libel tourists like Mahfouz.

The Jewish Week and New York legislators Lancman and Skelos got the ball rolling, but now it is up to the citizens of New York to finish the job. We must urge our representatives to vote in favor of the Libel Terrorism Protection Act. The lawmakers in Albany need to know how important our freedoms are to us. The sooner the law in New York is changed, the better our freedoms will be protected. n

Elizabeth Samson has a J.D. from Fordham Law School, and an L.L.M. in international and European law from the University of Amsterdam. She is a Legacy Heritage Fellow.

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