Free Speech, Libel Tourism and the Little Sabra Who Could
How a feisty Israeli-American scholar faced down a Saudi billionaire banker and an arrogant British judge—and strengthened free speech rights in the process.
by Judith Platt
I first heard of Dr. Rachel Ehrenfeld in the spring of 2005. A New York-based, Israeli-born American expert on terrorism and economic warfare, Ehrenfeld had published a meticulously researched book the previous year called Funding Evil: How Terrorism is Financed and How to Stop It, drawing the wrath of Saudi billionaire banker Khalid bin Mahfouz. In April 2005, the Freedom to Read Committee of the Association of American Publishers, the free expression advocacy group whose work I direct, was asked to provide legal support for Ehrenfeld in a nasty libel fight with Bin Mahfouz, who sued her in a British court under England’s notoriously plaintiff-friendly libel laws. Ehrenfeld’s book was never published in England and had sold only 23 copies there over the Internet. There was, in fact, no English connection, since neither she nor bin Mahfouz resided there. Hence the term “libel tourism”—a cynical legal maneuver in which a defamation suit is filed against a writer or journalist in a foreign jurisdiction whose laws do not provide the free speech and free press protections guaranteed by the First Amendment.
At the time, England was rapidly becoming the libel tourism capital of the world. Bin Mahfouz had already successfully sued or intimidated more than 40 authors and publishers there, including the venerable Cambridge University Press. His libel suit against Ehrenfeld was heard by an English judge with a well-earned reputation for hostility to free speech. Mr. Justice Eady had been reviled in the British press (tabloid and liberal) for “arrogant and amoral” judgments (The Daily Mail) and accused of having “held free speech to ransom” (The Guardian). Finding Ehrenfeld guilty in absentia, he imposed substantial monetary damages and costs, ordered her to issue a public apology, issued a “declaration of falsity” against the book, banned its publication in the U.K. and ordered all unsold copies to be destroyed. Refusing to participate in the English proceedings, Ehrenfeld counter-sued in New York to have the English judgment declared unenforceable in the U.S. as a blatant violation of her First Amendment rights. Despite our support and support from a host of media and free speech advocacy groups in federal and state court proceedings over the next two years, an unfavorable ruling in December 2007 found that the New York courts did not have personal jurisdiction over bin Mahfouz, ending her suit.
If you think that deterred her, you obviously have never met Rachel Ehrenfeld.
She went to Albany to tell her story to the New York State Legislature and by January 2008 a bill had been introduced to prohibit enforcement of a foreign libel judgment unless a New York court determines that it satisfies the free speech and press protections guaranteed by our Constitution. It would also allow New York courts to exercise personal jurisdiction over non-residents who obtain foreign libel judgments against New York residents. On May 1, 2008, the Libel Terrorism Protection Act, affectionately known as “Rachel’s Law,” was signed by the governor, and Rachel embarked on a campaign to get other states—and, ultimately, the U.S. Congress—to pass similar laws.
Libel tourism represents a serious threat to American authors and publishers. I knew we had to be part of her crusade. I was eager to get Rachel’s story to a wider audience.
The various components of the “book community”—publishers, authors, librarians and booksellers—have a long history of working together to promote free speech. One of the most effective things we do is to sponsor educational programs, and one such program was coming up in the summer of 2008 at the American Library Association’s annual conference. Although authors and publishers were all too aware of the threat of libel tourism, it was unknown territory for most librarians. An endorsement of federal legislation by the American Library Association would carry a great deal of weight. A program built around Rachel’s narrative, with context provided by a smart young First Amendment lawyer named Jonathan Bloom, could go a long way in explaining the chilling effect of foreign libel suits on constitutionally protected speech. The program, called “The Biggest Threat to Free Speech You’ve Never Heard Of,” was a huge success—and, even better, I finally got to meet Rachel.
It was hard to imagine this dynamo, barely five feet tall, facing a bin Mahfouz “employee” who came to her apartment at night to serve her with papers and deliver an unspoken message: “Watch your back.” After the program, over dinner that evening, respect and admiration became real friendship, notwithstanding the difference in our politics. Rachel is definitely neo-con; I’m a traditional lefty free-speech advocate. Little did I realize that this difference would be our strength going forward in the effort to get a federal libel tourism law through Congress.
Federal legislation with bipartisan support was already in the works in the House of Representatives by 2008, and arguments in favor of a federal libel tourism bill were coming from across the political spectrum. First Amendment advocates pointed out that foreign libel judgments deprived American authors and publishers of their right to speak. National security proponents saw them as a threat to our ability to identify terrorist organizations and their funding sources. As an article in The New York Times pointed out: “The American Civil Liberties Union may not often see eye to eye with the American Center for Democracy, a research group with neoconservative credentials. But the two organizations are united on at least one thing: their distaste for British libel laws, which they say are being exploited to suppress free speech in Britain and beyond.”
To reinforce the effort in Washington, Rachel was busy lobbying state legislatures across the country and, in rapid succession, Illinois, Florida and California passed their own versions of “Rachel’s Law.” After Congressional hearings, seemingly endless meetings with House and Senate Judiciary Committee staff and several false starts, the SPEECH Act was introduced in June 2010 and passed the Senate by unanimous consent on July 19, followed by House passage on July 27. It was signed into law by President Obama on August 10. The new law prohibits federal courts from recognizing or enforcing foreign libel judgments that do not pass First Amendment muster, and allows American authors and publishers to go to court and seek a declaration that such a foreign judgment is “repugnant” to our constitutional values and not enforceable in the U.S.
The Ehrenfeld case and its aftermath had a salutary effect in the U.K. as well. While journalists, authors and scientists in England had long been pressing for changes to their libel laws, passage of the SPEECH Act served as the catalyst they had been looking for to prompt the creation of a British parliamentary committee of inquiry. The result was passage of The Defamation Act of 2013, containing new protections for those publishing material on matters of public interest and exercising “responsible journalism.” The new law also dealt a blow to potential libel tourists by tightening the requirements for filing suit for those with little connection to England.
In December 2008 I traveled to New York to see Rachel be honored by the American Jewish Historical Society with their public service award. In her acceptance speech, she said: “You have honored me for my work. But what is that work? I don’t command an army, or control an industry, or have vast wealth or hold political office. In other words, I do not possess any of the traditional sources of power in society. Instead, I do one thing: I write. I tell it straight, fighting for truth and clarity in the public square of ideas.” In Rachel’s case, that was more than enough.
Judith Platt is the director of free expression advocacy for the Association of American Publishers.