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March 21, 2005
Kennedy's Folly Coming Back To Haunt US Speech?

When Justice Anthony Kennedy relied on international legal practices to justify his decision to strike down death penalty sentences for minors, he may have inadvertently opened up a new front in the assault on American political speech. Now with the Supreme Court relying on foreign courts for precedent, the ability of people to rely on the high threshold for establishing libel and slander in American courts may no longer apply, as plaintiffs might simply venue-shop internationally for their complaints instead.

Skeptical? You may want to read Thomas Lipscomb's latest article in Editor & Publisher, which describes exactly how such cases have already been filed. This example involves Dr. Rachel Ehrenfeld, whose book on terrorist financing, Funding Evil, has provoked legal action from one of the people she names as a terror financier:

Sheik Khalid Salim a bin Mahfouz has allegedly endowed and arranged financing for a number of Islamic charity organizations that have been accused of funding terrorism. According to the U.S. Department of the Treasury, the Muwafaq Foundation transferred millions to Mr. bin Laden. According to Ehrenfeld, There are currently over 10 lawsuits outstanding by numerous plaintiffs in the United States claiming billions of dollars in damages from Mahfouz's alleged involvement in financing the 9/11 attack of the World Trade Center."

On his Web site, Mahfouz says he is "increasingly angered" over accusations such as Ehrenfeld's. "There is no truth to these reports," reads the statement. "We condemn terrorism in all of its forms and manifestations."

In an attempt to circumvent the First Amendment protection of American writers like Ehrenfeld, Mahfouz has successfully sued or settled with over 30 publications and authors for defamation and libel in British courts for years. "That many legal actions brought in a plaintiff-friendly jurisdiction evidences a consistent campaign by Mahfouz to silence any author, journalist, or publication who attempt to analyze or document any role he may have had in funneling the money of the Saudi royal family or wealthy Saudi families to terrorist activities," Korenstein points out.

The British laws against libel place the burden of proof on the defendant, not the plaintiff, to prove the absolute truth of whatever they have printed. Before people start cheering, that significant difference turns centuries of American jurisprudence on its head, which requires in both criminal and civil complaints that a presumption of innocence on behalf of a defendant must be overcome. Normally a plaintiff has to show not only untruth in libel cases, but has to show malice and damage as well. In Britain, the defendant has to prove truth, a lack of malice, and/or a lack of real damage.

Small wonder, then, that those who publish in Britain tend to settle these cases out of court, usually in favor of the plaintiff. Mahfouz has a long string of such settlements with media sources such as the Washington Post. The only difference in Ehrenfeld's case is that Funding Evil has never been published in Britain -- only 30 copies are known to have gone there, sold over the Internet to individual buyers. Still, British courts have entered a summary judgment against Ehrenfeld nonetheless. As she put it while filing a countersuit against Mahfouz in the US:

As an American citizen, Ehrenfeld has ignored the Mahfouz British action and default judgment."If American authors can be silenced by actions of foreign courts in their own home jurisdiction in the United States, what use are the First Amendment guarantees of freedom of speech?" she said. "To establish that protection for myself and other writers, I have sued Mahfouz in the United States Federal Court in the Southern District of New York in December."

Ehrenfeld ignores the lawsuit at some peril, especially after Kennedy's precedent-setting legal opinion in the death-penalty case. Kennedy essentially conceded that American law had to acknowledge international standards, and that language will certainly find use with Mahfouz' American attorneys who will attempt to collect the judgment in the US. Kennedy's folly in surrendering American sovereignty over our own jurisprudence may have pleased the internationalists but will echo into all sorts of mischievous areas of our legal and political system. The fact that the first battleground may be the First Amendment, one of our primary enumerated distinctions between American politics and that of most other nations, is somehow both ironic and oddly predictable. When Ehrenfeld and/or Mahfouz eventually appeal the case to SCOTUS, I eagerly and with great trepidation await Kennedy's opinion about how the Constitution and its greatest guarantee of liberty survives his very own global test.

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Posted by Ed Morrissey at March 21, 2005 9:55 PM

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