NYT editorializes against libel tourism as threat to 1st amendment

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When Rachel Ehrenfeld wrote “Funding Evil: How Terrorism Is Financed and How to Stop It,” she assumed she would be protected by the First Amendment. She was, in the United States. But a wealthy Saudi businessman she accused in the book of being a funder of terrorism, Khalid bin Mahfouz, sued in Britain, where the libel laws are heavily weighted against journalists, and won a sizable amount of money.

The lawsuit is a case of what legal experts are calling “libel tourism.” Ms. Ehrenfeld is an American, and “Funding Evil” was never published in Britain. But at least 23 copies of the book were sold online, opening the door for the lawsuit. When Ms. Ehrenfeld decided not to defend the suit in Britain, Mr. bin Mahfouz won a default judgment and is now free to sue to collect in the United States.

The upshot is a First Amendment loophole. In the Internet age, almost every American book can be bought in Britain. That means American authors are subject to being sued under British libel law, which in some cases puts the initial burden on the defendant to prove the truth of what she has written. British libel law is so tilted against writers that the United Nations Human Rights Committee criticized it last month for discouraging discussion of important matters of public interest.

Mr. bin Mahfouz, who has denied financing terrorism, said Ms. Ehrenfeld’s book contained inaccuracies and demanded a retraction. He also demanded a significant contribution to a charity of his choice — a charity Ms. Ehrenfeld said she feared would be one with ties to terrorism. Ms. Ehrenfeld, who describes herself as being “in the business of stopping people who fund terrorism,” refused to back down. “I said,” she later recalled, “he’s found the wrong victim.”

Ms. Ehrenfeld rallied prominent champions of free speech to her cause, including the American Library Association, the Association of American Publishers and the PEN American Center. She also set to work trying to change American law. The New York State Legislature passed a bill that some are calling “Rachel’s law,” which blocks enforcement of libel judgments from countries that provide less free-speech protection than the United States. Gov. David Paterson signed it on May 1.

A similar, bipartisan bill has been introduced in Congress. The federal bill would extend protection to the entire country. It would also allow American authors and publishers to countersue, and if a jury found that the foreign suit was an attempt to suppress protected speech, it could award treble damages. There is little opposition to it — and Congress should pass it before it adjourns later this month....

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