Memorandum submitted by Brooke M. Goldstein, Director, The Legal Project at the Middle East Forum

 

I. Executive Summary

 

1. Today, libel lawfare is being waged in the form of frivolous and malicious lawsuits designed to intimidate, silence and bankrupt anyone who speaks publicly about radical Islam, terrorism, or its sources of financing.

 

2. The United Kingdom's particular libel and jurisdictional statutes have made the UK the favored forum for these suits, which are creating a chilling effect on the exercise of free speech about matters of grave public concern not only within the UK, but throughout Europe and North America.

 

3. The continued use of British courts to silence American authors has prompted the New York State Senate to pass the Libel Terrorism Protection Act, and the Federal Government to consider for passage as law the Free Speech Protection Act, both which specifically nullifies foreign libel judgments against Americans sued in UK and other foreign courts. The effect of this law is to render impotent any British libel judgment against a US citizen should a US court render British law to provide inadequate protections for free speech as defined under the First Amendment of the United States' Constitution.

 

4. The continuing abuse of UK law seems to be reducing the nation's standing and otherwise impugning the UK's venerable reputation as a defender of freedom of speech and the due course of justice.

 

II. The Submitting Party: Brooke Goldstein, director of the Legal Project at the Middle East Forum

 

Brooke Goldstein:

 

1. Brooke Goldstein is a licensed and practicing attorney based out of New York City and Philadelphia. Her expertise is in human rights law, specifically as it relates to the First Amendment of the US Constitution and the protection of free speech and free assembly. Goldstein also has a focus and is a recognized expert on the legalities surrounding children in armed conflict.

 

2. Goldstein has been invited to brief government officials at the U.S. State Department, the White House, and at U.S. Central Command, and has visited U.S. military bases and military schools to address US troops on issues of asymmetric warfare. In November of 2008 Goldstein was invited to brief members of the UK Parliament on the issue of libel lawfare and libel tourism.

 

3. Goldstein has published widely on the issue of libel tourism, UK libel law and libel lawfare, including, but not limited to the American Spectator, The Middle East Quarterly, Counter Terrorist Magazine, The New York Daily News, USINFO, Frontpage Magazine and other publications.

 

4. Goldstein is the 2007 recipient of the E. Nathaniel Gates Award for Outstanding Public Advocacy, the 2009 Inspire! Award bestowed by the Benjamin N Cardozo School of law, is an adjunct fellow at the Hudson Institute, a fellow at the Henry Jackson Society, and serves as the Director of the Legal Project at the Middle East Forum.

 

5. Goldstein is also an award winning filmmaker, her most recent documentary film "The Making of a Martyr," about child suicide bombers, was honored in 2006 by the United Nations with the Audience Choice Award for Best Film and is currently broadcast on television stations throughout the globe, including in Canada, Sweden Korea and the Middle East.

 

6. Goldstein is a seasoned lecturer and has taught seminars at various graduate schools including the Benjamin N Cardozo School of Law, New York University, Berkeley University, and Stanford University.

 

7. Goldstein has made several media appearances including on FOX News, CNN, the John Batchelor Show, WABC News Talk Radio, TVE (of Spain), on RAI (of Italy), NYC TV (local ch.25), Time Warner's "Faith to Faith" television show (Brooke's episode won the Telly Award for Outstanding Programming).

 

8. As an effort to facilitate public awareness and fruitful discussion of human rights violations against children ignored by the mainstream media, Brooke co-founded A2B Film Productions Inc., a Canadian-based independent documentary film production company focused on creating films that expose and explore such issues.

 

9. Goldstein is also the founder and director of the Children's Rights Institute, a not for profit dedicated to raising awareness and legally combat the recruitment and incitement of children to become child soldiers, human shields and suicide bombers. [See www.childrensrightsinstitute.org]

 

The Legal Project:

 

10. The Legal Project at the Middle East Forum is a not-for-profit organization that operates similarly to a public interest law firm and which provides pro-bono and reduced rate legal representation to politicians, authors, activists and publishers targeted with strategic lawsuits designed to silence their exercise of free speech.

 

11. The mandate of the Legal Project has since expanded to encompass a response to attempts by Islamists targeting the human rights of North American and European civilians in order to constrain the free flow of public information about radical Islam, terrorism and its sources of financing.

 

12. The Legal Project is in the unique position of being completely dedicated to dealing with all facets of Lawfare, including the particular tactical manifestations thereof commonly referred to as "libel terrorism" or "libel tourism."

 

13. Due to its expertise, the Legal Project has been requested to submit memoranda and informational analysis to both the United States Congress and Parliament on the subjects of British contempt law and its effect on US citizens and comparative UK and US laws of defamation.

 

14. The Legal Project has also been involved in several high profile cases defending the rights of American and European citizens to speak freely on issues of public concern.

 

III. The phenomenon of libel tourism in the United Kingdom, a manifestation of 'lawfare' designed to curb public discussion about issues of grave public concern

 

15. Lawfare is defined as the use of the law as a weapon of war, or the pursuit of strategic aims through aggressive legal maneuvers.

16. Over the past ten years, we have seen a steady increase in lawfare tactics directly targeting the human rights of North American and European civilians in order to constrain the free flow of public information about radical Islam, terrorism and its sources of financing.

17. UK courts, due to the nature of British libel laws, principles of long arm jurisdiction, and "hate speech" legislation, have proved more friendly jurisdictions for parties who want to restrict the dissemination of material drawing attention to radical Islam and terror financing, and deemed 'blasphemous' of the Islamic religion due to their critical nature. Lawfare tactics have created a chilling effect on the exercise of free speech within the UK and the US.

IV. Islamist Lawfare: Cases and Controversies in the United Kingdom

18. A major player in the area of libel tourism is Khalid bin Mahfouz, a wealthy businessman who resides in Saudi Arabia and who has been accused by numerous parties of financially supporting Al Qaeda. Faced with the prospect of protracted and expensive litigation, a heavy burden of proof on the Defendant, notoriously generous libel awards and the ability to recover costs, the majority of people who are merely threatened with lawsuit by Mahfouz and within the UK, regardless of the merit of their works, have issued apologies and retractions, while some have also paid fines and "contributions" to his charities.

19. In 2007, when Mahfouz threatened to sue Cambridge University Press for publishing the book Alms for Jihad, by Robert Collins and J Millard Burr, Cambridge Press immediately capitulated, offered a public apology to Mahfouz, took the book it once stood by out of print, pulped the unsold copies, and made the outrageous demand that libraries all over the world remove the work from their shelves, a demand that was met with outright refusal and considerable derision.

20. Right after the US publication of Rachel Ehrenfeld's book entitled Funding Evil, Mahfouz sued Ehrenfeld for defamation because she too had written about financial ties between him and terrorist entities. The allegations against Ehrenfeld were heard by a UK court despite the fact that neither Mahfouz nor Ehrenfeld resides in England; the court asserted jurisdiction over her on the basis of approximately 23 copies of Funding Evil sold online to UK buyers via Amazon.com.

21. Unwilling to travel to England or to acknowledge the authority of English libel laws over herself and her work, Ehrenfeld lost on default and was ordered to pay heavy fines, apologize, and destroy her books, all of which she refused to do.

22. In response to Ehrenfeld's case, the New York State legislature and the United States House of Representatives unanimously passed the Libel Terrorism Protection Act and the Free Speech Protection Act respectively, which operate to expressly prohibit domestic judicial recognition of foreign libel judgments from jurisdictions with fewer protections for free speech then granted under the US Constitution.

23. Mohammad Sawalha, president of the British Muslim Initiative and a man who, according to a recent BBC documentary, coordinated funding for the EU designated terror group Hamas, launched a libel suit against the British blog Harry's Place, for accurately translating what may have been a mistranscription of an Al-Jazeera interview during which Sawalha allegedly referenced the "Jewish evil" in Britain. When Al-Jazeera amended the term to "Jewish lobby," Harry's Place responsibly reported the change in an update. Sawalha, an activist for the anti-Semitic and hateful terrorist organization Hamas, was apparently objecting to the implication that he is "anti-Semitic and hateful".

24. Saudi billionaire and businessman Mohammed Jameel likewise took advantage of UK courts and sued the Wall Street Journal for libel over an article which reported about the Saudi Arabian authorities' monitoring of bank accounts, apparently including Jameel's, for evidence of supporting terrorism. Fortunately the British court, articulating the Reynolds doctrine, overturned Judge Eady, the same judge in Ehrenfeld's case, and held the article to be one of public importance and published responsibly.

25. When British television Channel 4 broadcast part one of an exposť of radical Islam in UK mosques, which showed extremist Imams engaging in anti-democratic rants and inciting the murder of British soldiers, the station was attacked by the West Midlands police force which accused the station, not the radical Imams, but the station of "damaging community relations" and reported Ch 4 to the Broadcasting Standards Commission, who attempted unsuccessfully, to prosecute them for 'racial hatred.'

26. When Christian Revelation Television hosted a guest speaker who expressed his opinion that Islam was not a religion of peace, OfCom judged the station to have violated Rule 4.1 of their Code, a particularly vague and ambiguous law requiring broadcasters of religious programs to steer away from material that "exploits the susceptibilities of religious audiences," which is equally nebulous and easily subject to manipulation. Revelation TV, instead of defending their right to free speech, groveled apologetically at the charge that they may have offended anyone.

27. This past June, a police community support officer ordered two Christian preachers to stop handing out gospel leaflets in a predominantly Muslim area of Birmingham. The evangelists were threatened with arrest for committing a "hate crime" by spreading their Christian message and telling Muslims youth to leave Islam, and were told they risked being beaten up if they returned."

 

28. The cumulative effect of the lawsuits, threatened actions, and seeming double standards above directly contributes to the silencing of free speech on a global scale, adversely affects the United Kingdom's reputation for upholding core democratic values, and provides a benefit only to those who callously manipulate the legal system in order to achieve their goals, which are fundamentally anti-democratic.

 

29. This manipulation of the legal system further adversely affects Anglo-American relations, including, but not limited to, traditional principles of comity between the two nations, and eats away at the Anglo-American legal tradition, a shared body of law and basic principles that is a cornerstone of modern civil law.

 

V. Hate Speech laws

 

30. Of course there is no such thing as the absolute freedom to speak, and there are indeed legitimate constraints on speech such as obscenity, defamation or incitement to immediate violence, yelling fire in a crowded theatre, and it is perfectly legitimate for anti-hate laws to be used to increase the punishment for crimes that are racially motivated.

 

31. However, when hate speech laws are selectively applied, when they are interpreted too liberally, or written too ambiguously, when they are used to criminalize satire or opinion or to punish merely what is offensive to some, or when hate speech laws are used as a guise to enforce punishment of blasphemy, then they are being used to infringe the rights of the speaker who is neither afforded any type of due process or equal protection under the law. There is also the danger that hate speech laws provide a slippery slope downwards towards criminalizing legitimate actions and dialogue.

 

32. Moreover, the goals of those who seek to apply libel and hate speech laws to persons talking about terrorism or radical Islam are not to increase the peace, but to subvert discussion and knowledge about a very real danger and to undermine democratic values. Banning speech critical of religion is a step backwards, and banning speech about terrorism is a step towards legitimizing such violence. Secular laws must be designed to protect the free exercise of religion not blasphemy and a distinction must be drawn between for example, harassing someone on their way to pray and standing on a soap box and insulting Judaism, Christianity or Islam.

 

33. Legislators must work to draw a finer line between what is acceptable speech and what is not, what is protected opinion and satire and what is libel or incitement to violence against a religious group. By silencing dialogue about religion, terrorism and the role of religion in secular society, we are making it easier for radical elements to achieve their goals by robbing our societies of the ability to discuss real threats and by stifling our own intellectual powers to fight it.

 

IV. Several Pertinent Differences between US and UK Libel Law

 

34. Burden of proving truth (or falsity)

a. US: Plaintiff has burden of proving falsity of allegedly defamatory statement (truth of statement is presumed at law)

b. UK: Defendant has burden of proving truth of allegedly defamatory statement (falsity of statement is presumed at law)

35. Fault standard(s)

c. US: Distinction between public and private figures, with more protection for the latter. In cases of public figure, plaintiff must prove actual malice

d. UK: Uniform standard of fault; good reputation presumed for all plaintiffs, no need to prove actual malice

36. Heightened fault standard for matters of public concern/public interest

e. US: On matters of public concern, plaintiffs must prove actual malice; "public concern" is construed broadly

f. UK: There is a qualified privilege ("responsible journalism", Reynolds doctrine), but falsity and damage are presumed by law. If truth is not a possible defense, Defendant must prove that it acted "responsibly" in attempting to discern truth of matter

37. Prior restraints

g. US: Presumptively invalid, under the 1st Amendment and jurisprudence

h. UK: Though there's a general rule against them, it is possible to submit a prepublication injunction request, to which defendant must assert that it will defend with a claim of truth, or other such substantive defense

 

V. Recommendations for Action by the Government

 

38. Convert the legal presumption in defamation cases from falsity to a presumption of truth, followed by shifting the burden of proving the contrary on the Plaintiff.

39. Require a showing of actual malice in cases involving public figures, and speech regarding matters of public concern.

40. Avoid potential misuse by sensationalist editors by incorporating the American jurisprudential concept of "reckless disregard for the truth" into a definition of "actual malice," where, unlike the American definition, rather than a fault standard to apply to a class of people or issues, the actual malice requirement would prove a form of 'second tier' level of fault a plaintiff could plead, for which he or she could then recover additional damages against the unscrupulous and sensationalist 'journalist' who ignored facts in order to conduct a hatchet job.

41. Consider implementing anti-SLAPP [Strategic Lawsuit Against Public Participation] laws to limit the filing of malicious and chilling defamation suits aimed at silencing critics of oneself or organization. Include award of all costs to would-be SLAPP victim.

42. Introduce a bill designed to supersede previous Acts, including Defamation Act 1996 as far as they are affected by these changes

43. Instruct British courts to decline jurisdiction in cases where jurisdiction would clearly not represent the correct forum (i.e. a handful of copies of a book published elsewhere and suit brought by a non-resident).

 

44. Re-examine the application and prudency of "hate speech" laws and prevent their application as a guise for enforcing blasphemy laws.

 

45. Request the oral testimony of the following individuals:

 

a. Brooke M. Goldstein, director of the Legal Project at the Middle East Forum. In her capacity as Legal Project director, Ms. Goldstein has spent the past two years intensely involved with the study of Libel Lawfare, particularly as it pertains to freedom of speech in both a historical and current context.

 

b. Andrew C. McCarthy, director of the Center for Law and Counterterrorism at the Foundation for the Defense of Democracies. Mr. McCarthy is also a former Assistant United States Attorney for the Southern District of New York, during which time he was heavily involved in prosecuting terrorism.

 

c. David B. Rivkin, Jr., partner, the law firm of Baker Hostetler. Mr. Rivkin has considerable experience with, and expertise in, numerous United States constitutional issues, including those pertaining to the First Amendment, and is further experienced in the area of public international law.

 

March 2009