Update (12:27 p.m.): Speaking of Islamofascism, Pakistan’s Benazir Bhutto, first female PM of a Muslim country, has been assassinated. Read more at Hot Air and Michelle Malkin’s.
Later…On a lighter note, my review of Net, Blogs and Rock ‘n’ Roll has been posted.
————————————————————
Jeff Jarvis, blogger, journalist, and media critic I credit for my appearances on MSNBC a couple years ago, points to an article about an American author sued in an English court for libeling a Saudi.
Rachel Ehrenfeld wrote in Funding Evil: How Terrorism is Financed – and How to Stop It accused a rich Saudi named Khalid Salim A. Bin Mahfouz of funding Islamofascist groups like al-Qaida.
Ehrenfeld sought protection under New York state law and asked that the judgment against her be rendered unenforceable, but the courts contend Bin Mahfouz is not subject to New York jurisdiction. It’s a procedural matter, but substantive to Ehrenfeld all the same.
Jeff is concerned, perhaps rightly so, that such a judgment chills free speech and postulates that such actions could extend to speech that merely criticizes Islamofascists. It’s not so far-farfetched, once you consider that Islam is incompatible with the West, given its propensity toward free expression, which includes the right to offend. But are we talking about libel, censorship, or both? Ehrenfeld accused the man of funding terrorism. What “free speech” right does she have to do that?
As scary as it seems, anyone who publishes anything in print or online is subject to libel laws all over the globe. Either Ehrenfeld libeled Bin Mahfouz or she didn’t. But what if she did? One can only imagine the resultant damage of being accused of funding terrorism.
Findlaw’s Julie Hilden says libel laws in the UK are more “pro-plaintiff” than such laws in the US. She briefly analyzes what libel is and the standard of proof applied if the plaintiff is a public figure as opposed to a private individual. The UK doesn’t have a strong legal tradition of tightly defining libel and requiring standards of proof that leave wiggle room for defendants. The US has a longer and much stronger tradition of giving defendants the benefit of the doubt. Indeed, the very idea is embodied in our Constitution.
If the UK is censorship prone, that’s a problem. Hilden writes:
Make no mistake, this is a clash of cultures: one that so values speech and openness that it leaves significant room for irremediable, damaging error; and another that so values reputation and privacy, that it errs in favor of what is, in effect, government censorship accomplished by the courts.
In other words, under America’s legal system, one can write or say irremediably damaging things about someone, but if the subject is a public figure and if the alleged defamer had no knowledge and did not act in reckless disregard for whether the accusation was false or not, the defamer is not guilty of libel. Dig?
The US v. UK libel laws discussion should concern everyone, of course, but more interesting is the Internet’s role in all this. Can Americans claim “No jurisdiction!” in foreign courts (and vice versa) when the Internet has “globalized” practically all aspects of communication? As Hilden says, writers are responsible for whatever they publish, for whatever ends up getting republished, and even “foreseeable republication.” People in the UK read this blog, for instance. If I libel a UK citizen from my perch in the nation’s capital, I may be liable under UK law for damaging that person’s reputation in the UK. (I hope I dig.)
Damages awarded by a jury in defamation cases hinge on the level of damage (perceived or actual?) to the defamed person’s reputation. Theoretically, the more widely published the libel, the more damaging it is to the person’s reputation. Thanks a lot, Internet!
In that regard, we Americans should be subject to libels laws around the globe, no matter how speech-suppressing. Hilden tacitly acknowledges that if a writer targets a foreign audience, he should be subject that country’s libel laws. As Americans, such a scenario leaves us queasy and shouting, “First Amendment violation!” But are foreign government’s obligated to honor our Constitution? Of course not. Hilden’s proposed solution to the mess (emphasis added):
Rather than contending with these elusive trans-hemispheric cases as the Internet slowly makes borders and oceans less and less relevant for distribution and reputation purposes, it might make the most sense for the U.S. and U.K. to enter into a defamation treaty. The treaty would ask both U.S. and U.K. courts to give up jurisdiction in defamation cases in which the other country has a stronger interest, based on factors such as the intended dissemination of the allegedly defamatory statement, personal jurisdiction over the defendant, and the location of the plaintiff’s primary reputation, and therefore, of his or her alleged damages.
A workable solution? (I still want to go to the UK, by the way, despite its pro-plaintiff, censorship-like quality. Working on it!)
One concern I have about foreign laws is the censorship of religious speech. It may seem ridiculous to us Americans, but I envision a world in which sharing the Gospel will be considered hate speech. Isn’t it already the case in Canada? Think it can’t or won’t happen here? American politicians already tried to make it so.
Remarkable thing, the Internet. In fact, the implications of digital technology specifically are far-reaching and profound. As knowledgeable as we think we are, we can only guess the far-ranging consequences of the so-called digital age. Even if you don’t have a blog or video blog or podcast, the implications of all this technology will affect you, too.
This morning I finished writing a review of Net, Blogs and Rock ‘n’ Roll, which examines one aspect of the digital age: how people discover entertainment products like music and how creators of these products and marketers can make digital discovery easier. Fascinating stuff. I’ll post the link once the review’s up on BlogCritics.
La Shawn, your comment about the Gospel perhaps one day being considered hate speech is 100% on the mark. Already some groups in the USA are warming to this idea. This fetish some in our courts have for elevating foreign laws (not just British) over the US Constitution will only fuel these efforts.
I don’t agree with Hilden, or with her proposed “solution”. This is not a “clash of cultures” - these laws and lawsuits are being pushed by groups and individuals who see them as a way to shut up those who get in their way.
Nor do I feel comfortable with the idea that US citizens should be subject to foreign laws – even British ones. What happened to national sovereignty and our own political process? One of the reason people come to the United States is to escape people like Bin Mahfouz.
It is not hard to see the consequences of this. What happens if Iranian leaders demand that American women (Muslim or not) be forced into obeying sharia law - including the burka and genital mutilation? On what grounds would American courts refuse if they allow Americans to be subjected to lawsuits like Bin Mahfouz’s? It is no use to argue that there is no treaty to cover it – the Constitution is supposed to be the supreme law of the land, not an unconstitutional “defamation treaty”. It is no great leap to go from a “defamation treaty” to ignoring the Constitution altogether.
Comment by Mwalimu Daudi — 12.27.07 @ 2:06 pm
Nor do I feel comfortable with the idea that US citizens should be subject to foreign laws – even British ones. What happened to national sovereignty and our own political process? One of the reason people come to the United States is to escape people like Bin Mahfouz.
Agreed! I loathe the idea of being subjected to laws in foreign courts, esp. if my “crime” occurred on American soil. But this Internet thing, I’m telling you, it’s squeezing us all together. Too closely? For better or for worse, we get to see all this play out on the global stage. And we’ve got good seats!
Comment by La Shawn — 12.27.07 @ 2:11 pm
I am mystified that jurisdiction over Bin Mahfouz even enters into it. The issue is that British courts do not have jurisdiction over Ehrenfeld.
Yeesh. The Brits just keep justifying our revolution every chance they get.
Comment by McGehee — 12.27.07 @ 5:15 pm
How about this for a compromise? Let the British courts (acting through their Foreign Office) ask for Ehrenfeld to be extradited to England to stand trail there. More importantly, let them explain in American courts why he must be extradited (“Is Mr. Ehrenfeld accused of terrorism? Of murder? Child pornography or human trafficking? Smuggling weapons or illegal narcotics?” “No, your Honor – he pissed off a rich Arabian sheik by writing a book.”).
No unconstitutional “defamation treaty” to hide behind, and a clear line of accountability – any judge fool enough to hand Ehrenfeld over would face the wrath of voters and/or elected representatives.
Comment by Mwalimu Daudi — 12.27.07 @ 6:58 pm
It seems to me that the issue is where the alleged libel originated. If it originated in the U.S. but goes by internet, broadcasting, or in a newspaper left on a U.S. plane landing at Heathrow, it is subject to U.S. law and is protected by the First Amendment. Secondly, if a foreign court decides I libelled someone in their country who in the U.S. is going to enforce it? For now, at least, until we decide to shed more of our sovereignty.
Comment by Mike — 12.28.07 @ 5:19 am
It’s clear that strong conservative leadership is going to be needed now more then ever before. Liberals still can’t come to grips that 911 was actually caused by muslim extremists and not some sinister plot of GW Bush.
Comment by Tyrone — 12.28.07 @ 1:00 pm
One aspect of this debate that seems to be overlooked is the prevalence of speech codes on US campuses. Many of the lawyers and judges in our courts today received their education in the growing Stalinist atmosphere at many American universities, and as such some of them may be very comfortable with the idea of censorship. To such individuals, suppressing the free speech of people who hold different opinions may seem both right and perfectly natural – and not the least bit unconstitutional.
Comment by Mwalimu Daudi — 12.28.07 @ 4:35 pm
Either Ehrenfeld libeled Bin Mahfouz or she didn’t. But what if she did? One can only imagine the resultant damage of being accused of funding terrorism.”
If Mahfouz is innocent, let him come to America to make his case. Britain has no business getting involved in this matter. The most annoying cliche ever uttered in movies actually applies here: “You can’t do this to me! I’m an American citizen!”
The author is American, and published the book in America, by an American publishing company one assumes–ergo, America has the sole jurisdiction. Let Mahfouz come here and make his case, if he has one.
As for the internet and jurisdiction, we already have people whining that they want to take away control of the internet from the US, and this case underscores why such a thing should never be allowed to happen.
Even with the internet Americans definitely have the right to say that what we write/say over here is no one’s business over there, wherever “there” is. The internet should just give other people practice in learning about the concept of free speech, and not be used as a chance for them to suppress ours.
Comment by Tyrian Purple — 12.29.07 @ 1:17 am
The brilliant Mark Steyn is under the Canadian “human rights (wrong) commission also -let’s keep our right to free speech alive.
Comment by Meg — 12.29.07 @ 10:56 pm
The religion of peace BRING IN BIN LADEN DEAD DEAD DEAD
Comment by Birdzilla — 12.30.07 @ 9:31 pm
Julie Hilden on the Ehrenfeld case and UK vsUS law…
Findlaw’s Julie Hilden (via La Shawn Barber) talks about Rachel Ehrenfeld’s problem with Saudi billionaire bin Mahfouz, and regarding the UK’s ludicrous libel laws, she says…
Trackback by Tel-Chai Nation — 12.31.07 @ 12:06 pm
No treaties are needed.
For some inexplicable reason the author rejects what I consider the clear right answer:
NY courts tell British to get stuffed.
Ehrenfeld is in effect permanently barred from ever visiting England.
Both nations continue to run their affairs in the manner chosen by their elected representatives, and don’t try to enforce court judgements outside their own jurisdictions.
If the British really don’t want such awful stuff destroying peoples’ reputation in Britain they should sue the book’s importers and ask the Chinese how to set up an effective internet censorship scheme, not ask us to change for their convenience.
Comment by Ralph Phelan — 01.08.08 @ 1:34 pm