Books: Libel Law and First Amendment Issues

U.S. journalist Rachel Ehrenfeld, author of "Funding Evil: How Terrorism is Financed -- and How to Stop It," was online Friday, Sept. 26 at 3 p.m. ET to discuss a new U.S. law that would protect U.S. citizens against libel judgments in countries with weaker protections for the press, a problem she faced when sued by a Saudi businessman. She was joined by First Amendment Center executive director Gene Policinski.

The transcript follows.

Ehrenfeld is the director of the American Center for Democracy. Her work has been published in the New York Times, Los Angeles Times, the Jerusalem Post, the Wall Street Journal and more.

Policinski is co-author of the weekly syndicated newspaper column, "Inside the First Amendment." He came to the Freedom Forum's First Amendment Center in 1996 from USA Today, where he was a founding editor and held various news executive positions.

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Gene Policinski: Good afternoon. By way of introduction, I'm Gene Policinski of the First Amendment Center, a nonprofit, nonpartisan education-focused foundation. We are one of the operating programs of the Freedom Forum, which on April 11 opened the Newseum in downtown Washington. I've been a journalist for near four decades, in the Midwest and Washington, and joined the First Amendment Center about 10 years ago.

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Dunn Loring, Va.: Given the stories today about government attorneys promising criminal libel actions against what they consider false political advertising, do you think U.S. law contains adequate protection for free speech in America?

Gene Policinski: Well, criminal libel is problematic to begin with in terms of free speech. There are adequate remedies on the civil side to protect all -- including government officials. In my personal view, the dangerous potential to chill needed criticism of the government argues for the elimination of criminal libel statutes.

Rachel Ehrenfeld: If the advertisers broke the law, and the government can prove its allegations, why not?

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Washington Defamation Lawyer: The anti-libel-judgment law (HR 6146) is a terrific concept and I have much sympathy for it. The problem is, U.S. treaties automatically, Constitutionally trump inconsistent statutes. Under the U.S. accession to the Hague Convention on Foreign Judgments in Civil and Commercial Matters (executed by the U.S. as part of the 1971 Hague Conventions), the statute is totally unenforceable. Any U.S. court would be required to simply disregard the law.

The only way to make it enforceable would be for the president to report exception to the Secretary General of the Hague Conventions, make a number of public proclamations, and get an implementing enactment from both houses of Congress as part of HR 6146. I am intrigued by the idea, but this will face real implementation difficulties.

Rachel Ehrenfeld: Not necessarily -- legal experts who examined the Free Speech Protection Act carefully support it. It is crucial that our free-speech rights, enshrined in our Constitution, are protected.

Once the bill pass, the courts will have the opportunity to test it.

Gene Policinski: I think Rachel raises a good point here. A court test will be needed to determine the extent to which we will accept "libel shopping" in foreign nations. Given the dramatic potential for onerous libel judgments in nations with libel laws favoring plaintiffs, the kind of "exception" action noted by Washington Defamation Lawyer might have an easier time through Congress than he counsels.

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Gene Policinski: On Sept. 17, the First Amendment Center released its annual State of the First Amendment survey for this year. Apart from showing (again) that very few Americans even can name all five freedoms on the First Amendment (religion, speech, press, assembly and petition), it also showed that large numbers of Americans are willing to use or partner with government to shut down expression they don't like. As I recall, the nation's founders had experience with such a system (a 'benevolent" King) and rejected it. It would seem that many Americans have lost that independent streak in favor of seeking some shelter from voices they disagree with.

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washingtonpost.com: Full State of the First Amendment Survey Results (.pdf)

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Dunn Loring, Va.: Regarding Rachel's answer of "why not," it's because it allows political officials to prosecute people for their political viewpoints, with the only hope for the defendant that the arbiter of fact (who is often a politically elected official) will be objective. Why do you oppose another country imposing its religious or social norms through their judicial system, but do not object to a U.S. political official imposing their norms through the court system? Is it just xenophobia?

Rachel Ehrenfeld: It has nothing to do with xenophobia, or how other countries impose their laws. I'm merely trying to protect my free-speech rights in the U.S. from judgments that violate my rights.

As far as I understand, frivolous libel suits will go nowhere in our courts.

Gene Policinski: Another factor to consider -- not incidental -- is the expense of having to defend oneself in a U.S. court against a libel suit intended to punish rather than legitimately seek compensation for demonstrable damage.

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Freising, Germany: Regarding the topic of your book, what is your opinion on the traditional practice of money-transfer operations known as hawala? Is a significant amount of money transferred to terrorists via this method? Also, were your difficulties with the Saudi businessman related to your work in this area?

Rachel Ehrenfeld: Hawala is an excellent way to transfer money to terrorists and criminals alike, as it seldom leaves any trail. Therefore It's hard to tell how much money is transferred that way.

It seems to me, however, that the serious money that is needed to fund the infrastructure that makes terrorists activities possible goes through the banking system. That money also is hard to detect because it's usually done as a legitimate business transfer or as a "charitable" contribution.

The lawsuit brought against me in London by Kahlid bin Mahfouz is related directly to my work.

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Harrisburg, Pa.: In the 2006 elections, I recall seeing ads attacking both State Treasurers in Pennsylvania and Texas for funding terrorists. I have strong doubts that any public official deliberately would fund terrorists. I never understood the connections between stock portfolios and companies that invest in foreign countries and thus are "terrorist fronts." Would you please explain if there is any truth to these type of allegations? If so, what exactly are the connections?

Rachel Ehrenfeld: I'm not aware of the 2006 ads in Pennsylvania and Texas, but investing and doing business with companies in countries designated as supporting terrorism is illegal. The same can be said about investing in sharia-based businesses, as the authorities governing sharia finance and Islamic banking support jihad against all infidels, stoning adulterous women, and the destruction of Israel.

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Gene Policinski: We've reached the end of the hour. Thanks to all.

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Rachel Ehrenfeld: Thank you all for your questions.

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