by Alyssa A. Lappen
Unless the U.S. Congress and New York legislatures act immediately to stop them, foreign terror financiers and libel tourists now can essentially impose sharia (Islamic) law on American writers and publishers.
Intended or not, a narrow, technical New York Appeals Court decision on Thursday Dec. 20, 2007 produces that net effect. The ruling concerns jurisdiction in Dr. Rachel Ehrenfeld's suit against Saudi billionaire Khalid bin Mahfouz, seeking a federal declaratory judgment against him to render unenforceable in the U.S. a U.K. High Court default "libel" decision. By implication, the New York Appeals Court ruling harms all publishers and writers in New York, the world's publishing capital.
Ehrenfeld's case stems from her 2003 book, Funding Evil: How Terrorism is Financed—and How to Stop It, where American Center for Democracy Director reports Mahfouz' well-documented terror funding. (Full disclosure: Since September 2005, I've been an ACD Senior Fellow.) As always after such terror financing reports, Mahfouz sued Ehrenfeld for libel in Britain. His attorneys informed U.K. High Court Justice David Eady that former CIA director R. James Woolsey wrote her book's foreword. "Say no more," Eady replied. "I award you a judgment by default, and if you want, an injunction, too."
Eady then ordered Ehrenfeld to apologize, retract, pay Mahfouz $225,913.37 in damages and destroy remaining copies of her book. Instead, she ignored the British default judgment and false libel claim—never tried on its merits—and asked the Southern District Court of New York to rule the U.K. judgment unenforceable here.
In the U.S., the Supreme Court's seminal 1964 New York Times v. Sullivan decision defined libel or slander by a journalist as stating or writing falsehoods or misrepresentations that damage someone's reputation—and in cases of public figures, doing so with malice.
Under sharia, by contrast, libel constitutes any oral or written remark offensive to a complainant, regardless of its accuracy or intent. Slander "means to mention anything concerning a person that he would dislike, whether about his body, religion, everyday life, self, disposition, property, son, father, wife, servant, turban, garment, gait, movements, smiling, dissoluteness, frowning, cheerfulness, or anything else connected with him," according to Ahmad Ibn Lulu Ibn Al-Naqib (d. 1368). 1
Repeat: Sharia regards even the truth as slander if its subject dislikes the facts. Now applied through foreign courts, sharia law interpretations of libel have demonstrably undermined U.S. press viability already. Though Mahfouz never proved merits in any libel case, he has threatened or sued more than 35 journalists and publishers (including many in the U.S.) through Britain's High Court, and exacted fines, apologies and retractions from all but Ehrenfeld. Last Thursday, New York's Appeals Court substantially (if not intentionally) allowed the application of sharia rules here.
New York State recently held that it can collect sales taxes from "commercial" enterprises with as little physical presence as a single link on any New York-based website. While temporarily reversed on November 15, the state's controversial opinion will be enforced after the 2007 Christmas season.
Yet, also by New York fiat, Constitutional First Amendment rights now take a back seat to the state's conservative "long-arm" statutes—which protect distant commercial enterprises from state courts. A Saudi national suing an American journalist in Britain, Mahfouz hired numerous New York agents and couriers and used many New York electronic and telephone communication systems expressly to halt Ehrenfeld's investigations and publications concerning terror finance. However, on Dec. 20 the New York Appeals Court established Mahfouz' New York-based commercial transactions as less commercial (or significant) than a distant merchant's sales link on a New York-based website.
In its unanimous June 8, 2007 request for a local ruling on jurisdiction, the U.S. Second Circuit Court of Appeals panel specifically extended as wide a berth as possible to the New York Court of Appeals to consider First Amendment rights within the context of Ehrenfeld's case.
However, the New York Court ignored the federal instructions to consider Constitutional issues—or the effects this case will consequently have on Constitutional rights in the world's publishing capital. "However pernicious the effect of this practice [libel tourism] may be, our duty here is to determine whether defendant's New York contacts establish a proper basis for jurisdiction," wrote Judge Carmen Beauchamp Ciparick, an appointee of former Governor Mario Cuomo.
Shockingly, New York's Court of Appeals allowed Mahfouz' commercial actions (and any similar commercial actions of any other foreign terror financier and libel tourist) to subjugate Constitutional First Amendment rights to archaic commercial statutes.
Now, the U.S. Congress and New York legislators must swiftly enact new "long-arm" statues, suitable to our electronic age, before further damage to the U.S. Constitution ensues.
1Ahmad Ibn Lulu Ibn Al-Naqib (d. 1368), Reliance of the Traveller: The Classic Manual of Islamic Sacred Law Umdat, translated by Nuh Ha Mim Keller, 1991 and 1994, Amana Publications (revised ed., 1994), p. 730.
Alyssa A. Lappen, an American Center for Democracy Senior Fellow and American Congress for Truth Contributing Editor, is a former senior editor of Institutional Investor, Working Woman and Corporate Finance and former associate editor of Forbes.