Thursday, November 15, 2007

Amici Curiae

[Originally posted on Stop Islamic Conquest]

This post presents excerpts of briefs filed in Dr. Ehrenfeld's case. If you are not familiar with the case, I have a whole list of posts in the sidebar where you can learn about it, although this very post is not a bad place to start!

Here are excerpts of a brief filed by the Legal Project at the Middle East Forum; they help explain the impact of Ehrenfeld's case:

    3. The Amicus respectfully submits that it is uniquely suited to assist the Court in the resolution of this appeal. Dr. Ehrenfeld is just one of many researchers and analysts who have become victims of forum shopping and intimidation tactics used by Mahfouz and others, aimed only at punishing those who are working to engage in dialogue about terrorism and its sources of financing. The Legal Project is very familiar with the type of "lawfare" being used by the Defendant, who has tactfully chosen a foreign court with radically difference libel laws to create a looming, chilling effect on the exercise of free speech by Dr. Ehrenfeld and other American authors in the field.

    4. American researchers and analysts are on the front lines of the war on terrorism as they work to educate the public and brief the U.S. government about the various threats posed to civil society. Unfortunately, legal action by individuals and organizations seeking to silence their critics in the United States is an ascending phenomenon. Such lawsuits are often predatory and undertaken as a means to bankrupt, distract, intimidate, and demoralize defendants. There is a grave need for American courts to provide a forum within which American authors can preemptively challenge the effects of this tactic.

    5. For the reasons stated in the proposed amicus curiae brief, the Amicus believes it is vital that this Court address the merits of the issue at hand, and recognize that Rachel's case is not unique nor will it be the last attempt at stifling free speech within our borders, from without. We think that this case is one of the most important First Amendment cases the Court has seen in the past 25 years, and has the ability to serve as a valuable precedent for thousands of American authors and analysts. Moreover, we feel that this case will have an extremely important impact on how our citizens are able to respond to the war on terrorism. We beg the Court to afford the Plaintiff an opportunity to defend her constitutional rights against inequitable foreign libel laws, and to address the greater issues at hand.


    I. The Growing Threat of "Lawfare" to American Researchers, Analysts & Authors

    A viscous and particularly dangerous form of offensive "lawfare" is being carried out by the enemies of the free world, with the strategic goal of intimidating, bankrupting and ultimately silencing those who dare speak out against their actions. Those who preach hate and destruction of the West, as well as those who finance terrorism, have been targeting media outlets, book publishers as well as innocent researchers and authors who have dedicated their lives to exposing the sources of terrorism, with a series of expensive and destructive lawsuits. These lawsuits aim to silence critics of radical Islam and terrorism, and are usually based on frivolous claims ranging from defamation, to workplace harassment, to conspiracy to violate civil rights. While the prosecution in these cases have the full support and financial backing of wealthy domestic and foreign charities as well as states such as Saudi Arabia and Egypt to the tune of millions of dollars, the defendants simply do not have adequate funds or resources to turn to for ample support.

    Civilians throughout American history have always been the government's "first responders," especially against terrorism, but lawsuits by wealthy financiers, radical clerics and the organizations that support them, are frightening people into silence as their victims seek to avoid the nightmare of being named as defendants, being labeled as bigots and having their assets garnered in accordance with foreign libel judgments. In the words of noted attorney Jeffrey Robbins, "this is an attempt by folks who apparently have massive financial resources to dress up as a conspiracy [legitimate questioning protected under the First Amendment], and it has a distinctly McCarthyite aspect to it." Due to the threat of suit, people are becoming afraid to report mosques that proliferate hate to the government. Newspapers, magazines and think-tanks are afraid to publish reports and articles about the problem of violent radicalization within our borders, and book publishers are rejecting meritorious works for fear of being sued.

    This form of "lawfare" is quickly gaining momentum with a ripple effect, has succeeded in intimidating civilians, the media and non-profit organizations from exercising their freedom of speech, and has incurred a cost burden of thousands of dollars while the list of innocent victims against whom suits have been wrongfully filed is considerable and growing.

    Central to defeating this assault on the free flow of accurate information within the United States is an environment in which American authors and researchers feel comfortable exercising their right to free speech. Dr. Ehrenfeld's case could prove one of the most important First Amendment cases in the past 25 years. It is time for a precedent to be set against libel tourism and unfair threats against innocent American citizens to lose their chilling effect.

These excerpts are from a brief by a laundry list of organizations associated with the media and publishing; the brief helps explain how the case developed and the ramifications of Sheikh bin Mahfouz's actions:

    A. The Facts Presented in This Appeal Powerfully Illustrate the Danger Libel Tourism Poses to Free Expression in New York

    Rachel Ehrenfield, a United States citizen, resident of New York, and the director of the New York-based American Center for Democracy, wrote Funding Evil: How Terrorism is Financed – and How to Stop It. The book was published in 2003 by Bonus Books, a United States publisher, solely in the United States. The book alleges that defendant Khalid Salim a Bin Mahfouz, a subject of Saudi Arabia, financially supported Al Qaeda in the years preceding the September 11, 2001, terrorist attacks on New York and Washington, D.C. Al2-15.1

    Mr. Bin Mahfouz has alleged that the statements concerning him in Funding Evil are false and defamatory. In October 2004, he brought a libel action against Dr. Ehrenfeld. He filed suit in England, and not in the New York, where Dr. Ehrenfeld works and lives, or anywhere else in the United States, where the book was for sale. Al2, A16-22, A53-54.

    Mr. Bin Mahfouz and.his agents had substantial contacts with New York in connection with the English defamation action. On four separate occasions, his agents came to Dr. Ehrenfeld's home to deliver papers related to the English court action to her. A55. On eight separate occasions, Mr. Bin Mahfouz's attorneys sent letters, emails and packages to Dr. Ehrenfeld's home in New York or to her email address, where she read the emails from her computer located in New York. A56-58. These contacts included a letter sent by Mr. Bin Mahfouz's attorneys to Dr. Ehrenfeld in New York demanding that she take certain steps, including the destruction of copies of her book in New York and the taking of steps to prevent leakage of the book into the United Kingdom. A56-57. See also Ehrenfeld, 489 F.3d at 548-49.

    It is clear that Mr. Bin Mahfouz, a Saudi national, filed suit in England to avoid application of United States libel law and the protections that the First Amendment provides to libel defendants. The differences between the two countries' libel laws are significant, with English law favoring plaintiffs in a number of critical respects and not affording defendants the constitutional protections that American authors, journalists and news organizations take for granted. For example:

        English law does not distinguish between private persons and those who are public figures or are involved in matters of public concern. None are required to prove falsity of the libel or fault on the part of the defendant. No plaintiff is required to prove that a media defendant intentionally or negligently disregarded proper journalistic standards in order to prevail.

        The defendant has the burden of proving not only truth but also of establishing entitlement to the qualified privilege for newspaper publications and broadcasters....


    Under English law, "a libel defendant would be held liable for statements the defendant honestly believed to be true and published without any negligence. In contrast, the law in the United States requires the plaintiff to prove that the statements were false and looks to the defendant's state of mind and intentions."


    Dr. Ehrenfeld did not appear in the English action, and Mr. Bin Mahfouz obtained a default judgment against her. A7. By avoiding the First Amendment, and thereby not having to prove falsity or actual malice, Mr. Bin Mahfouz was able to obtain "substantial damages," as he has described it on his website,2 against Dr. Ehrenfeld, an injunction against Dr. Ehrenfeld "publishing, or causing or authori[z]ing the further publication" of the disputed statements in Funding Evil in the United Kingdom, and a "declaration of falsity" in which the court determined (without the benefit of the views of Dr. Ehrenfeld, her publisher or any other witnesses) that the challenged statements in Funding Evil are false and defamatory. A7-8, A33- 36.

    The value of the default judgment to Mr. Bin Mahfouz's campaign against Dr. Ehrenfeld and other journalists who have also linked him to the funding of terrorism is obvious, even if– indeed especially if – he takes no further actions to enforce it. The English judgment, as well as the English court's "declaration of falsity" and its injunction against publication, has chilled and will continue to chill Dr. Ehrenfeld's exercise of her free speech rights. It likely will compromise her ability to find publishers in the future. Publishers, who carry insurance policies imposing obligations to review the liability risks of works they consider for publication, may well shy away from an author subject to such an outstanding judgment. In fact, some already have: after Mr. Bin Mahfouz posted his account of the English judgment on his website, two publications that regularly featured Dr. Ehrenfeld's work rejected an article she wrote about a Saudi-owned company and have declined to provide Dr. Ehrenfeld with reasons for their decisions. A61.

    By subjecting Dr. Ehrenfeld to liability based on the content of Funding Evil, the English judgment deters her from making any future statements about Mr. Bin Mahfouz, or any other of her research subjects, that might be alleged to be defamatory under English law. The outstanding English default judgment – particularly because it includes a "declaration of falsity" – harms Dr. Ehrenfeld's reputation as an American author and researcher. Further, unless Dr. Ehrenfeld is afforded an opportunity to challenge the English judgment, she is exposed to the ongoing risk of domestic enforcement proceedings and is potentially compromised in her ability to borrow funds and acquire property. Thus, Dr. Ehrenfeld has already begun to tailor her writing to more restrictive English libel standards in order to avoid future suits like Mr. Bin Mahfouz's English action. A61- 62.

    Dr. Ehrenfeld is not the only one being chilled by the English default judgment. Increasingly, publishers are being subject, based on de minimis availability of their works abroad, particularly through the internet, to the jurisdiction of foreign courts that apply laws that do not comport with the constitutions and public policies of New York or the United States. As a result, media organizations have begun to curtail speech that would be protected in their home country out of legitimate concern that they will be subject to judicial actions in countries with fewer protections for free expression.


    Mr. Bin Mahfouz alone has sought to silence his critics by threatening to sue or by actually suing for defamation at least 29 times in the United Kingdom. See A26. This phenomenon is especially troubling where, as here, the challenged publication occurred solely in the United States, where the First Amendment requires libel plaintiffs to meet a much more demanding burden of proof. See Bachchan, 154 Misc.2d at 231-32, 585 N.Y.S.2d at 663; Matusevitch, 877 F. Supp. at 4.

    This broad chilling effect not only jeopardizes the individual rights of members of the media, but also stunts the crucial free flow of information and ideas to the people of New York and the American public on matters of public concern. Mr. Bin Mahfouz's English judgment provides compelling evidence of the ease with which the subjects of critical investigative journalism are able to punish American authors by using the courts of another country to avoid the protections of the First Amendment, while also evading American judicial review of those foreign judgments.

You are encouraged to go to Dr. Ehrenfeld's website, read the legal papers that she has posted there, and while there, contribute monetarily to her battle against Sheikh Khalid bin Mahfouz, a multibillionaire, who is one of the world's richest men, and who has been consistently identified by many scholars as a Financier of Holy Terror.

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