Free Speech Loophole Threatens American Writers

The apology by the Danish newspaper Politiken for publishing the “Mohammed cartoons” -- 12 cartoons of a turban-wearing bearded man with a bomb which were released in 2005 -- comes as no surprise. In 2006, a few months into radical Muslims’ violent demonstrations the world over in reaction to the images, the paper’s publishers visited me in New York City.

Discussing my own embroilment with an unjustified libel suit by a Saudi against me in London, the publishers opined that settling was the optimal approach to a potentially expensive suit. Four years later, Politiken seems to have taken its own advice, caving into Saudi pressure and apologizing for its exercise of free speech.

This sad but predictable incident illustrates the difference between the free speech protections afforded in Denmark and those guaranteed in the United States. With laws similar to the American legal and jurisprudential traditions of heightened speech protection backing its position, Politiken would have faced less of a threat in the Danish courts than it did.

This latest international debacle for free speech brings into focus the need to bolster American rights to freedom of expression against modern threats. In recent years, claimants have exploited the anti-free speech bias of the laws in many nations to secure libel judgments against American authors and publishers for statements made in the United States. By suing an American writer abroad in courts free of constitutional protections for freedom of speech, a claimant might win a libel judgment that would fail in the United States. The claimant could then try to enforce that judgment in the United States, at great emotional and financial expense to the defendant.

The Free Speech Protection Act now pending before Congress would protect American illustrators, scholars, journalists, and bloggers from this fate. Recently the subject of a hearing in the Senate Judiciary Committee, the bill protects all U.S.-based authors and publishers from libel judgments rendered in countries that have lesser protection for free speech than in the U.S. Constitution. The bill applies only to judgments given in countries where the authors do not have sufficient personal or professional ties, and allows for collection of legal fees and -- when appropriate -- damages from the libel tourist.