How far can a Saudi sheikh use English law against an American author?
CAN the guarantee of free speech in America's first amendment trump English libel law? That is the question facing New York's Court of Appeals, in a case starting on November 15th. Rachel Ehrenfeld, a New York-based author, is seeking a ruling that an English libel judgment against her cannot be enforced in America and that her book, "Funding Evil", is constitutionally protected free speech.
Ms Ehrenfeld's book makes a series of allegations about the charitable activities of a wealthy Saudi businessman, Khalid Mahfouz, all of which he strenuously denies. Mr Mahfouz has won numerous victories in English courts against those who have sought to link him to Islamist terrorism. In August, for example, Britain's Cambridge University Press withdrew all copies of "Alms for Jihad", a book taking a similar line to Ms Ehrenfeld. That caused a furore: American librarians have refused the publishers' request to withdraw the book from their shelves; surviving copies change hands for hundreds of dollars on the internet.
"Funding Evil", by contrast, was never published in Britain; indeed it sold only a few dozen copies there, via internet booksellers. Ms Ehrenfeld and her publishers were not represented in the court hearing in London in 2005. "English law does not apply here since 1776, when we won our independence," she says. That did not impress the judge, Mr Justice Eady, who awarded £10,000 ($21,000) damages—the maximum possible in a summary hearing of an undefended action—to Mr Mahfouz and to two co-plaintiffs. He also declared her allegations against Mr Mahfouz false, and criticised her for using the English court proceedings to advertise her book, citing its intentionally eye-catching new subtitle: "The book that the Saudis don't want you to read."
Mr Mahfouz's camp claim they are being misrepresented. Their lawyers have never tried to collect damages or costs from Ms Ehrenfeld, nor have they argued that the English court's judgment applies elsewhere, so there is no reason, they say, for a New York court to hear the case. Next week's arguments, they add, will be about jurisdiction, not free speech. The fact that Ms Ehrenfeld was served papers in New York notifying her of the London proceedings—so Mr Mahfouz's lawyers maintain—does not mean that their client conducts business in New York. That argument has already been accepted by a lower court.
None of that cuts very much ice with free-speech defenders in America, who have long detested English libel law for placing the burden of proof on the author, and for the huge costs that defendants face: even brief proceedings quickly run into six figures. Unless American courts take a stand, so they argue, English libel law is likely to deter anyone who feels inclined to investigate important but controversial subjects.
Nov 8th 2007, From The Economist print edition