Hey foreigners, libel this!

I'm not sure how I missed this case when it was decided by the U.S. Second Circuit Court of Appeals back in June, but the case of Ehrenfeld v. Mahfouz was an important victory for free speech rights.

Basically, Rachel Ehrenfeld of The American Center for Democracy, wrote a book, Funding Evil: How Terrorism is Financed, and How To Stop It, that implicates Saudi billionaire Khalid Salim A. Bin Mahfouz, among other people, as supporters of terrorism. Bin Mahfouz sued the New York-based Ehrenfeld in the U.K., which has libel laws that virtually make squinting at people the wrong way actionable under law. Bin Mahfouz won his case and Ehrenfeld was ordered to pay a hefty fine, publish an apology and destroy her books. Seeing how she's an American and the court doing the ordering is British, she declined to comply. Instead, she sued in New York to prevent the British decision from being enforced.

On June 8, the U.S. Second Circuit Court of Appeals overturned a District Court decision against Ehrenfeld, agreed that U.S. courts could intervene in such cases, and formally asked the New York Court of Appeals to determine if the law gives the state jurisdiction over the case that would allow it to shield Ehrenfeld from the British decision. On June 28, the New York Court of Appeals agreed to answer the jurisdiction question.

Yeah, I know. That sounds like a lot of legal mumbo-jumbo. But it's important.

Why?

Because in today's increasingly interconnected world, with books published internationally, even the smallest Websites available around the globe, and no courtroom more than a few hours plane ride away, it's all too easy for the aggrieved to hunt down venues that will entertain even the silliest complaint. People are potentially subject to litigation for doing and saying things that are perfectly legal and protected where they live. The U.K. is one of those jurisdictions where speech that enjoys First Amendment protection in the U.S. can be punished.

Noted civil liberties attorneys Harvey Silverglate and Samuel A. Abady call such venue-hunting "libel tourism" and warn of its potential for use as a bludgeon against American writers and publishers.

No other nation goes as far to protect speech. Indeed, outside the United States, truth is often not a defense to allegations of defamation. The Sullivan standard is not accepted in Britain, Canada, Australia, or any of the 41 member states of the Council of Europe.

Bin Mahfouz and fellow libel tourists have made the English libel bar rich, leading the London Times to declare the United Kingdom the "libel capital of the Western world." English lawyers now refer to the "Arab effect" to describe the surge of English libel actions by wealthy, non resident Arabs accused of funding terrorism. This trend has produced a succession of rulings, settlements, and damage awards against English and American media defendants costing millions of pounds.

There's no way to force other countries to improve their protections for individual rights--especially at a moment in history when U.S. credibility on the issue is at a historic low. There's also no easy way to convince other countries to close their courts to venue-seekers looking to hunt American targets on friendly legal turf.

That leaves U.S. courts the task of reassuring Americans that foreign judgments that violate U.S. protections for individual rights are null and void in the United States. Americans can rest easy no matter what foreign judges say if U.S. courts treat foreign decisions that violate the Bill of Rights as a lot of outrageous hot air.

Which is why the decision in Ehrenfeld v. Mahfouz was an important step in the right direction.