The First Amendment reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.This amendment, the first in what is called the "Bill of Rights', has been interpreted by courts over the 200 year period in which it has been in effect. (See a good timeline of the development of the First Amendment here.) There has been a great deal of debate on the extent to which the First Amendment applies. Some believe it to be absolute, that is, that there can be no limit put on the freedom of speech. Others note that there are reasonable limits—the case of preventing 'falsely yelling "fire" in a crowded theater' is frequently used as an example of proper limitation.
As the timeline linked above shows, the US understanding of freedom of speech has developed from British law. The two laws, however, diverged over time. Now, when it comes to a case of libel, US law requires the person who claims to have been libeled to prove a) that the statement made against him is false, and b) that it was made with malice. British law, conversely, requires that the one making the statement prove its truth.
While the blog piece discussing the issue (Rachel Ehrenfeld v. Khalid Salim Bin Mahfouz) believes these two legal systems to be '180° opposite', I'm not sure. They certainly differ, but their purpose—to prevent a person's reputation from being damaged by false allegations—is the same.
In a footnote to the blog article, the author cogently discusses the issue of 'comity', a legal concept that means that one country will generally recognize the decisions of a foreign court, if the legal systems are sufficiently similar. The question is, are the US and UK systems sufficiently similar.
There's no question that an American trial would have worked differently. Would it have reached a different decision, though?
Ehrenfeld lost several court cases in the US seeking to have the British decision held null, or to at least prevent its having effect on her in the US. Her case in the New York courts,was dismissed for lack of jurisdiction. She appealed that decision to the US Court of Appeals for the Second District. That court's decision was to send the case to New York Court of Appeals, where it was accepted for argument on June 28 of this year.
You can read the brief made by Ehrenfeld's attorneys here [this is a 57-page PDF document]. Note that this is—properly—a one-sided telling of the story. It seeks to put forward the best arguments favoring Ehrenfeld. I cannot find on-line the equivalent brief from Bin Mahfouz attorneys, but am seeking one.
Ehrenfeld is not the first person to raise allegations that Bin Mahfouz and other members of his family have been supporters of terrorism. Bin Mahfouz has strenuously argued in various courts that he and his family condemn terrorism in all its forms. So far, he has won his cases. (See this page at the Bin Mahfouz website that links to the various decisions and apologies.)
US courts will have to decide about whether they have jurisdiction to affect a decision made in a British court. They will have to decide whether a British court's decision is enforceable in the US. To date, no US court has addressed the issue of the truth or falsity of the allegations against Bin Mahfouz. In all cases brought before British courts, Bin Mahfouz has been found to have been libeled. He does have the right to protect his name and reputation against false allegations.
Published on: Crossroads Arabia