Libel Tourism, American Style
There's been a fair amount of attention to the use of Libel tourism--that is, individuals who think they've been slimed in a country with freedom of the press, who then find another country more favorably inclined towards plaintiffs in defamation cases, and sue there. The most celebrated such tourist is a Saudi billionaire banker named Khalid bin Mahfouz, who has collected substantial damages in England from American book publishers. Most recently, he's been after Rachel Ehrenfeld, and he got a judgment that requires Ms Ehrenfeld to apologize and pay more than two hundred thousand dollars. She's done neither, and instead went to court in New York. Eventually the New York State Legislature passed a law protecting American publishers and authors from such attacks.
All well and good, so far as it goes. But people like Khalid bin Mahfouz certainly have an effect on free expression all over the Western world. As Roger Kimball wrote nearly a year ago, even when there are no trials or judgments, the knowledge that they are possible has a chilling effect on book publishers, book dealers, librarians, and of course authors. Roger tells of being asked by a distributor in Canada and Britain whether a book he was about to publish--Andy McCarthy's splendid Willful Blindness--had any anti-Saudi or anti-terrorist language. Sounds incredible, to be sure, but here's part of the letter:
Can you please let us know if there are any references to Saudis and terrorist[s] in the book. We are just concerned that this book, could potentially create libel lawsuits as it could offend Saudis living in England and this has happened with many other US publications and we do not want to be jeopardized in selling this book.
Word gets around, and very few authors or publishers have deep enough pockets to take on a Saudi banker in an overseas courtroom.
By and large, such practices haven't been very common in this country, thanks to the 1964 Supreme Court decision, Times v. Sullivan. The upshot of that decision was that "public figures" have very little protection from nasty articles or broadcasts, and that for such a person to win a libel case, he'd have to demonstrate either "genuine malice" (which in practice means he'd have to show that the journalist knew he was writing something false, and only did it in order to damage the "public figure") or "reckless disregard of the truth." Very difficult. Those of us who are regularly slimed are always told by smart lawyers that bringing suit is probably a losing proposition, and it's best to ignore it, or fight it out in public fora.
I'm not a big fan of this almost impossibly high bar for libel; I think that it should be possible to sue on the basis of "it's false and it's damaging," and if judges want to go easy on the slimers, so be it. I have been a libel tourist myself, in the sense that I have sued foreign publications in both England and Italy, and have yet to lose a case. The awards were modest, but the satisfaction was considerable. Priceless, you might even say.
There's nothing new in this, by the way; towards the end of the Cold War, many of the most outspoken critics of the Soviet Union were calumniated in the popular press all over the West, and the writers of the slimes virtually defied the likes of Bukovsky and Suvarov to sue them, knowing the high cost of legal action. Fortunately, Britain's finest libel lawyer, the late Peter Carter-Ruck, was willing to fight pro bono on behalf of the dissidents, and they won several cases. Sometimes a real libel law works in favor of the innocent.
But I hold no brief for those who use the courts as a method of throttling free speech, which seems to be the intent of the Obama supporters in Missouri who threaten legal action against campaign ads they don't like. This is the bin Mahfouz method, with the usual consequences: people will be intimidated, they will fear to say or write or broadcast things that the Obama crowd doesn't like. I was pleased to see Missouri Governor Blunt brand it for what it is:
This abuse of the law for intimidation insults the most sacred principles and ideals of Jefferson. I can think of nothing more offensive to Jefferson’s thinking than using the power of the state to deprive Americans of their civil rights. The only conceivable purpose of Messrs. McCulloch, Obama and the others is to frighten people away from expressing themselves, to chill free and open debate, to suppress support and donations to conservative organizations targeted by this anti-civil rights, to strangle criticism of Mr. Obama, to suppress ads about his support of higher taxes, and to choke out criticism on television, radio, the Internet, blogs, e-mail and daily conversation about the election.
Quite right. If any candidate can prove that his opponent is lying about the facts, his remedy is the same as yours or mine: fight it out in the brawl that is American politics. Their method is quite clearly one designed to favor the wealthy folks who can afford all the lawyers. They probably don't expect to win, they just seek to intimidate. If they don't like the brawl, then let them propose a different standard for libel. But that is not what they're doing. Not at all.
Rush, as he does so often, put it best: "where did these people go to school? University of Stalin?"
I'm very concerned that if Obama wins this election, we'll see a lot more of this sort of thing. I'm waiting for the libertarians to wage jihad against it...
UPDATE: Meanwhile (h/t to the Instapundit), a smart and fun lawyer goes into more detail.
FURTHER UPDATE: The New York State law has now gone national. A House bill declares that foreign libel judgments are unenforceable in the United States. And Arlen Specter, Joe Lieberman and Chuck Schumer want to go further still:
Indeed, the ACLU, the American Library Association, the Association of American Publishers, the PEN American Center, the Families of the 9/11 victims, and many others support the Free Speech Protection Act, 2008 (S. 2977) sponsored by Senators Arlen Specter, Joseph Lieberman and Chuck Schumer. Their legislation would allow U.S. writers to bring a federal cause of action against those who bring libel suits against them, in foreign jurisdiction for writing that does not constitute defamation under U.S. law . The Specter bill, like King’s (H.R. 5814) would also bar enforcement of foreign libel judgments and provide other appropriate injunctive relief and damages by U.S. Courts.
It seems to me that these people want it both ways: foreign libel judgments against Americans can't be enforced here, but we can sue them here for bringing such suits against us. That line in the Senate bill, "does not constitute defamation under U.S. law," is mischievous, as I argue above. We don't really have libel here any more. Which, to say it yet again, is wrong, and empowers libelers.
We should want two outcomes: a) libelers get punished, and b) those who use libel suits as pretexts to suppress free speech get punished as well.
REREUPDATE: Welcome, Instapundit readers. Glad to see your face :=)