Several weeks ago the New York State Court of Appeals began hearing arguments in a case with monumental and far-reaching implications for the protection of United States citizens abroad and the rights afforded by the First Amendment. The stakes are high in the case of Ehrenfeld v. Mahfouz, and the very future of free expression and public participation for all U.S. journalists, authors and their publishers hangs in the balance. The decision of the Court of Appeals will affect whether foreign defamation judgments rendered against U.S. citizens may be enforced in the United States if the judgments are at odds with the United States Constitution and American public policy.
The United States is party to treaties that require respecting foreign judgments on domestic soil, so that American citizens abroad will receive reciprocal and equally fair treatment offered to foreign nationals by the American judicial system. With respect to libel laws, however, there is a glaring disparity between the laws of the United Kingdom and the laws of the United States. In the U.K. the burden of proof rests on the defendant, while under American libel laws there is a presumption of truth that places the burden of proof on the plaintiff. This inequality has resulted in an onslaught of defamation litigation brought in courts in England, a country infamous for its "libel tourism" and notoriously known as the "libel capital of the Western world." The personally aggrieved of the globe bring their cases to England to sue foreigners, including many Americans, and win. Consequently, the libel tourist easily silences his critics and suppresses the free flow of ideas.
Since September 11, 2001, British courts have become increasingly attractive venues for those seeking to prevent their names from even being mentioned in public literature. One of the most frequent tourists on the U.K. libel circuit, Sheikh Khalid Salim bin Mahfouz, a Saudi citizen and former president and CEO of the National Commerce Bank of Saudi Arabia, has sued or threatened to sue in the U.K. approximately 30 writers and publishers for libel. He has more than enough resources to bankroll time-consuming litigation.
Libel lawsuits have silenced many writers unable to afford the astronomical costs of litigation by some of the best-funded business people in the international community. Because of the nature of British libel laws, Mahfouz has chosen to make the U.K. his destination of choice when it comes to silencing his critics.
One victim who refused to silently disappear is Rachel Ehrenfeld, a dual Israeli and American citizen and the author of the book "Funding Evil: How Terrorism is Financed – and How to Stop It." Mahfouz sued Ehrenfeld for libel in the U.K. over allegations in "Funding Evil" that Mahfouz was involved in financially supporting terrorism. Ehrenfeld, whose book was neither published nor distributed in the U.K., refused to participate in the trial.
The British court entered a judgment against Ehrenfeld, awarding Mahfouz $225,900 in damages and expenses and ordering her to publicly apologize and destroy her book. Subsequently, Ehrenfeld brought her case before an American court seeking a declaration that Mahfouz could not prevail on a libel claim against Ehrenfeld under the laws of New York and the United States, and arguing that the judgment in the English case is not enforceable in the United States on constitutional and public policy grounds.
The United States District Court for the Southern District of New York granted Mahfouz’s motion to dismiss for lack of personal jurisdiction. But Ehrenfeld appealed to the United States Court of Appeals for the Second Circuit, which declared the case ripe for review by a U.S. Court. It determined that the New York State Court of Appeals is the best forum to resolve whether personal jurisdiction over the defendant can be conferred under New York’s long-arm statute, which may grant personal jurisdiction over non-New York residents.
Too many American writers and journalists have been silenced, their writings destroyed, and apologies and financial rewards issued to U.K. libel tourists like Mahfouz.
The consequence of such litigation now threatens to cast a permanent gray cloud over the U.S. and our proud history of investigative journalism, as well as future undertakings. If the Court of Appeals rejects Ehrenfeld’s claim, the loss will set a very dangerous precedent. It will send the message to writers that the Constitution cannot safeguard against a foreign judgment that is deeply at odds with the traditional American values that guarantee the right of free expression.
The problem is clear, and the solution is self-evident. To end attempts to stifle American writers’ freedoms of speech and of the press, the New York State Court of Appeals must act now to protect those who seek to publish the truth. The Court cannot change U.K. libel laws or prevent cases from being brought there. But it can ensure that American libel defendants who lose their cases in the U.K. are protected from those who wish to violate our basic Constitutional rights and fundamental freedoms here in the U.S.
Elizabeth Samson has a J.D. from Fordham Law School, and an LL.M in International and European Law from the University of Amsterdam. She is a Legacy Heritage Fellow, working with The David Project.