Chesler Chronicles

Rachel Ehrenfeld: America’s Patron Saint of Free Speech

This is, indeed, “the worst of times, the best of times.” Dangerously brazen evil-doers and outrages both surreal and diabolical abound — but so do tireless heroes who have risen up to combat them.

When the history of our time is written, Israel’s Nahum Shahaf, France’s Philippe Karsenty and Nidra Poller, Germany’s Esther Shapira, and America’s Richard Landes (who collectively exposed the first Big Lie of the Intifada of 2000, that of Mohammed Al-Dura) will be remembered.

As will Pierre Rehov, formerly of Algeria, Israel, and France, who, in films, exposed the second Big Lie: that of the Israeli non-massacre in Jenin. Rehov also exposed, in film, the really big-but-all-but-forgotten refugee story of the Middle East: that of Jews expelled or forced to flee from Arab and Muslim countries. This film is called The Silent Exodus.

Ibn Warraq, in his book Defending the West: A Critique of Edward Said’s Orientalism, exposed a long-time and still festering Big Lie, that propagated by the Christian Palestinian-American Columbia professor, the late Edward Said, who persuaded the immediate academic world that Westerners, especially intellectuals, colonized our understanding of the Middle East and Muslim world and that our views are poisoned by racism, colonialism, arrogance, etc. Said single-handedly influenced academics everywhere to view formerly colonized Arab men, especially Palestinians, as the most oppressed on earth and to view Islamist barbarians and terrorists as justified freedom-fighters. Ibn Warraq’s work stands against this deluge.

Of course, the Swedish cartoonist, Lars Vilks, the American Molly Norris, the Dutch parliamentarian Geert Wilders, the Egyptian-European Bat Ye’or, and the scholar Zeyno Baran have all stood against the Biggest Lies of our time.

But now, allow me to sing the considerable praises of Rachel Ehrenfeld, whose brilliant persistence against the greatest of odds has won a great victory for free speech. Ehrenfeld is the first to acknowledge those who have helped her (see our interview below), but in my view, she is truly a lone David-like figure, working alone against a multitude of Goliaths. No other author really worked with her, shoulder to shoulder, in this long, hard campaign — although one came to testify.

Dr. Rachel Ehrenfeld

As we all know, Islamists have exerted a chilling effect on what writers, editors, and publishers are willing to say. Publish — and be demonized as an “Islamophobe”; publish and be bombed or butchered; publish and be driven into poverty by a lawsuit, by what Ehrenfeld calls “libel tourism” and what Daniel Pipes and Steven Emerson call “lawfare.”

I recently spoke with Ehrenfeld after her second major legal victory, this time in the American Senate. On April 29, 2008, the New York State legislature passed “Rachel’s Law.” On July 19, 2010, the American Senate passed the SPEECH Act. These two pieces of bi-partisan legislation potentially go a long way in terms of allowing American authors to exercise our First Amendment rights without having punitive judgments for “defamation” in foreign libel suits collected against us in the United States.

Phyllis Chesler: How did you get the SPEECH Act passed?

Rachel Ehrenfeld: The SPEECH Act is the culmination of a just over two-year campaign that involved intensive lobbying and advocacy efforts on behalf of the author and publisher communities.

It is based on the provisions of New York State’s Libel Terrorism Prevention Act, which is also known as Rachel’s Law. That law passed in 2008 in direct response to a court case in which a notorious libel tourist, Saudi sheikh Khalid bin Mahfouz, sued me in Britain for libel after I published information exposing his financial connections to Hamas and al Qaeda. I countersued for a declaratory judgment in the U.S. that Mahfouz’s English judgment could not be enforced because it violated constitutional protections for freedom of speech in the United States. But the New York courts deemed that they could not take personal jurisdiction over Mahfouz and therefore could not hear the case.

In its opinion, the court suggested that if the law on jurisdiction were to change, the case could be heard. While courts sometimes include this type of language in their opinions, people don’t often act on the recommendation as I did.
I appealed to the New York Legislature to pass corrective legislation allowing state courts to take jurisdiction over foreign defamation plaintiffs in order to grant declaratory relief in cases such as my own.

Within three months, the Libel Terrorism Protection Act was drafted, passed, and signed. Since then, six other states have enacted analogs to that law, which is also known as “Rachel’s Law” in a nod to my case. Those states are Illinois, Florida, Utah, Tennessee, Maryland, and California.The SPEECH Act will extend the protection of Rachel’s Law nationally. It is sorely needed and I am glad that we have made such stunning progress toward its passage.

Chesler: To what extent is this similar to the New York State version?

Ehrenfeld: The New York law offers parties who have been sued abroad for libel the opportunity to petition the New York courts for declaratory relief, and the ability to block the enforcement of the foreign judgment, as soon as it is rendered. The New York law is unusual in that it applies retroactively.The SPEECH Act offers the same relief, but it adds reimbursement of the legal fees for a successful author or publisher. I should note that the SPEECH Act is a wonderful achievement, but that there is some room to enhance its effectiveness in the future. We could deter libel tourism even more by amending this legislation to provide a damages award to authors that libel tourists have attempted to silence through the exercise of lawfare, as Senator Kyl has indicated in his statements on the legislation.

Chesler: Politically, what did you do to accomplish this?

Ehrenfeld: This success is the result of a lobbying effort that reached out to both sides of the aisle in an appeal to have them work together productively on an issue of national importance. Both sides recognized that our core democratic freedoms are threatened by the unbridled use of libel tourism against American investigative authors, researchers, journalists. Chilling their ability to expose our enemies’ actions is threatening our national security, as well as the informational exchange that is critical to ensuring scientific advancement, personal health and safety, and other key issues.

Chesler: Was this truly a bipartisan effort?

Ehrenfeld: Absolutely. The drafting and passage of this bill are a triumph of bipartisanship and patriotism over what has generally been a more contentious and divisive political atmosphere. Judiciary Committee Chairman Senator Patrick Leahy (D-VT), Ranking Member Senator Jeff Sessions (R-AL), and their staffs worked diligently to assess the nature and scope of the issue of libel tourism, and then to draft measures that would appropriately counteract the chilling effects that frivolous foreign libel judgments exert on our freedoms of expression. In particular, I’d like to thank the committee leadership and their staff for their quick and effective work in producing this measure and getting it passed through the Senate. The entire Senate is to be commended for this accomplishment.

Chesler: Please remind us of the ultimate fate of the lawsuit against you in England by bin Mahfouz, who I believe has died. Is this lawsuit now over because he died or is there any possibility that his heirs can continue to harass you?

Ehrenfeld: The Mahfouz case ended in a default judgment against me in which the court ordered a fine of $225,900 as well as a retraction of my statements on and public international apologies to Mahfouz. Mahfouz’s camp also tried to get me to destroy every copy of my book internationally. Given that this judgment violates the First Amendment to the U.S. constitution, it is not enforceable against me in New York. However, I have not been to Britain since the judgment was rendered, so as not to avail myself of British jurisdiction. Bin Mahfouz died in August of 2009, but as his sons were parties to the lawsuit against me, they may try to enforce the outstanding judgment against me. I still cannot go to Britain without risking severe legal penalties, which has limited my work and research opportunities over the past several years.

Chesler: Who was the lawyer who initially helped you in your lawsuit?

Ehrenfeld: Daniel J. Kornstein represented me in my New York lawsuit and was a driving force behind both Rachel’s Law and the creation of the SPEECH Act. Dan has been incredibly intelligent, generous, and dedicated in his efforts to promote freedom of speech through these legislative endeavors. He has been a constant advisor and a relentless source of support to me over the past number of years. This important achievement could have not happened without him.

Chesler: Have publishers approached you to write about this important work?

Ehrenfeld: I have not been approached to write about this in book form; I have been publishing articles and advocacy pieces on this topic regularly.

Chesler: Have other authors come forward to work on this bill? If so, who, for example?

Ehrenfeld: On the whole, I have been solely responsible for recruiting proponents of free speech rights to this cause, as well as for hiring lobbyists, consulting on legislative strategies, and writing and speaking about this topic. But I would be remiss if I didn’t mention Joe Sharkey, an Arizona-based freelance writer who is facing defamation charges in Brazil. Joe attended meetings on Capitol Hill with me in order to show lawmakers that the question of libel tourism is truly an international issue – a global problem facing the U.S. – rather than an exclusive product of English libel laws as it is often portrayed.

I’d also like to add that I appreciate the efforts of the Association of American Publishers and Judy Platt, many free speech advocacy organizations, and a number of individuals who were critical to ensuring that this bill was drafted and passed. Those individuals included former CIA director, a member of my organization’s board of directors and a good friend, James Woolsey; former Attorney General Michael B. Mukasey; and attorneys Floyd Abrams and Daniel J. Kornstein. Without them, this would not have come to pass.

Chesler: What do you predict will happen to the exercise of the 1st Amendment in America given the self-censorship that authors and publishers already engage in and given the harsh realities of Islamic death threats toward both authors and publishers?

Ehrenfeld: In terms of the First Amendment – the Muslims have politicized Islam and are using Western political institutions and standards to try to silence authors and publishers. That can and should be answered through appropriate legal action by all authors and publishers. Death threats should be dealt with seriously by law enforcement. But political correctness is preventing adequate and effective action by all of these communities, and that means that our defenses are weak and unless authors and publishers unite to protect their First Amendments rights, they are in danger of losing them.

Unless more reporters and publishers unite on the issue of free expression and insist that those who threaten the lives of others are severely reprimanded, we are self-imposing the type of constraints on freedom of expression and liberty such as one finds today in Iran, Saudi Arabia and all other repressive regimes.

Chesler: How do you think this bill might improve that atmosphere?

Ehrenfeld: The SPEECH Act is directed at enhancing protections for freedom of speech on every topic, including the publication of information which is important to the maintenance of our national security. Libel tourism had been used by many before 9/11. But only after the U.S. was attacked by al-Qaeda, Saudi and Gulf financiers of terrorism used libel terrorism as a weapon in their lawfare against America and the West, to cover up their nefarious ties and discourage investigation into their affairs. Now that American authors are protected from the enforcement of judgments that these figures might obtain, I believe that we will see more scholarship on these issues, contributing greatly to our safety, security and freedoms. The SPEECH Act will thaw the chilling effects that libel tourism and frivolous foreign libel lawsuits imposed on writers and publishers especially, but not solely, on issues of national security.

As to the bio, this version may be more recent:

Dr. Rachel Ehrenfeld is the Director of the New York-based Economic Warfare Institute (EWI) at the American Center for Democracy (ACD). She is the author of Funding Evil; How Terrorism is Financed – and How to Stop It (BonusBooks, 2003, 2005); Evil Money – Encounters Along the Money Trail (HarperCollins, 1992, SPI, 1994) Narco-Terrorism (Basic Books, 1990, 1992).

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