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.

The bill pending in the Senate  and related laws recently passed by some states have sparked vehement criticism by prominent British figures. They have seized the opportunity to attack the U.S., the UN Committee on Human Rights, and me. The attacks seem like an effort to silence increasing demands by British free speech proponents to reform British libel laws. These efforts followed my very public fight to stop British libel laws from infringing on my free speech rights.

My story began when Saudi billionaire Khalid bin Mahfouz sued me for libel in London in 2005.

As I had never lived or published in England, I refused to acknowledge the jurisdiction of the British court over my case, which resulted in a default judgment against me. As a result, I petitioned a New York federal court to declare the British judgment unenforceable. The court ruled that it lacked jurisdiction over Mahfouz, but acknowledged the important relevance of my case to First Amendment rights.

In reaction to that judgment, the New York legislature promptly passed the Libel Terrorism Protection Act in May 2008. Similar laws have been enacted in Illinois, California, Florida, and Utah, and are pending in Maryland, Arizona, and of course, the United States Senate.

The Free Speech Protection Act is not meant to change British libel laws or move towards imposing “an American legal hegemony … to the financial advantage of publishers in the United States,” as one English lord has claimed. It is aimed at safeguarding Americans’ rights to free expression, enshrined in our Constitution. This is why the bill has garnered wide support among free speech organizations and the media in the United States.

America’s founding fathers rebelled against the oppressive and suppressive policies of the British crown in 1775. Now, unlike the Danish, we are faced with the opportunity and the obligation to prevent further encroachment on our rights of freedom of expression. With the passage of the Free Speech Protection Act, the Senate will meet the responsibility.