Tourism with a Twist - Getting Around Those Pesky Laws

Here in the U.S., our law is governed by our Constitution, and as citizens, we enjoy the full protection of such. However, several attempts have been made to stymie the free speech of Americans by bringing libel suits in foreign jurisdictions, in a tactic known as "libel tourism."

The most high-profile case in recent years was Ehrenfeld v Mahfouz, where Irish/Saudi businessman Khalid bin Mahfouz had won a British libel suit against American writer Rachel Ehrenfeld for identifying Mahfouz in her book as a supporter and funder of terrorism. Ehrenfeld declined to defend herself in British court, citing the unreasonable cost of traveling to London and the fact that she had not published in Britain, and so did not want to lend credence to Mahfouz's libel tourism. After summary judgments had been served on Ehrenfeld, she sued in the New York court, arguing that Mahfouz fell under New York's CPLR 302 (a) (1) statute (Lines 22-3. Sorry for the third-party link, but this was the only definition I could find that did not reference Ehrenfeld), which gave the state jurisdiction over non-residents if they committed business transactions in the state and citing two such transactions.2 Surprisingly, the New York Court disagreed, and granted Mahfouz's request to dismiss Ehrenfeld's countersuit based on lack of jurisdiction. In denying jurisdiction, the court allowed that such action would be constitutionally permissible, but the authority to bring the case into NY jurisdiction had not been explicitly given by the Legislature.

Now hang on a moment. An American citizen, publishing in American forums, is denied the protection of the American constitution because ... a state legislature didn't allow it? Ehrenfeld had made no attempt to publish in Britain, and yet was theoretically subject to British law because third parties had brought 23 copies of her book to Britain and a chapter of her book on ABCnews.com was available to British readers. Yet, somehow, Mahfouz's actions, made totally against Ehrenfeld's work and holdings in America, had no bearing on Ehrenfeld's free speech protections in America. Sounds like the double standard Mahfouz was counting on to intimidate Ehrenfeld. Mahfouz got to attack Ehrenfeld in a completely irrelevant jurisdiction, and Ehrenfeld gets no recourse because New York declined to put Mahfouz under its jurisdiction.

Luckily, the legal loopholes that allowed such actions are being mended as we speak. Early this month, Representative Peter King (R. NY) introduced the Free Speech Protection Act of 2008, also known as Rachel's Law in recognition of Ehrenfeld, to stop such blatant workarounds of American law. Essentially, the bill is a formal recognition of the scare tactics of libel tourism, and a declaration that such judgments are invalid against American citizens until libel has been proven under American law. The bill is also a deterrent against false accusations by tripling damages if it is shown that the false libel was intended to interfere with the speaker's First Amendment rights.

It seems that such things would go without saying, but then, common sense seems to be missing from a lot of U.S. law. Still, this bill would be a huge step in the right direction, as American speakers increasingly find themselves under assault for criticizing foreign states or individuals. The United Nations has not been immune to this assault either, bowing to pressure from fundamentalist Muslims in its statement that "The Secretary-General strongly believes that freedom of expression should be exercised responsibly and in a way that respects all religious beliefs" (Reuters.com). The statement was in response to cartoons that appeared in a Danish newspaper depicting the Islamic Prophet Mohammed (peace be upon him). Under Sharia law, depictions of the Prophet (peace be upon him) are blasphemous, and the cartoonists have had to fend off death threats for their actions.

It seems ridiculous to criticize the cartoonists for deserving the response they got, but so the U.N. did. Now let’s suppose that the cartoonists did attempt to respect every religious belief. How exactly are they supposed to resolve the simple conflict of which deity to portray as the Ultimate God? The U.N.'s decision puts the burden of speech on the speaker not to offend, but there is always someone who will claim offense simply to stop speech they do not agree with. Rather, the burden of speech should be on the listeners to assume some risk of being offended when they enter the public arena, and by extension the global forum. Otherwise, if speakers can not offend anyone, then pretty much all speech is thrown out the window. Want to have a female teacher? Sorry, it offends fundamentalist Christians. Want to grab a burger? Sorry, cows are sacred in Hinduism. Want to declare lack of belief in any god, i.e. be atheist? Sorry, can't have that. The list of ridiculous contradictions goes on. It is simply ridiculous to suppose that a speaker can respect every religion and still manage to convey a meaningful message. Given the global climate and general attitude towards Americans in the world at large, it's an extremely good thing Rachel's Law is under consideration, lest proponents of religious tolerance get sued for libel by fundamentalists claiming their religion is the only true one. It's just too bad that it's taken us this long to figure out that laws in other countries are not exactly in accordance with our own.

And just because I can, here's a cartoon of Jesus and Mo. Original author at www.jesusandmo.net.