Another Landmark First Amendment Case?
It's Rachel Ehrenfeld vs. Sheik bin Mahfouz, a Saudi sheik who successfully
sued the American writer for defamation -- in England. Journalists, says Floyd
Abrams, "should line up and support the lawsuit."
By Thomas Lipscomb
(March 21, 2005) -- When Rachel Ehrenfeld, author of the book "Funding Evil: How Terrorism Is Financed and How to Stop It," opened her apartment door just before 10 p.m. on March 3, she believed she was simply receiving some legal papers from London. But this was no ordinary messenger. According to Ehrenfeld, the visitor carried a warning as well: "You had better respond. Sheik bin Mahfouz is a very important person, and you really ought to take very good care of yourself."
"I expected to receive some legal papers, not a threat from a Saudi sheik in my own country," Ehrenfeld told me last week.
The ease with which foreigners, like this billionaire Saudi sheik, now pursue damaging lawsuits against American writers and publications in foreign courts is astonishing. Bin Mahfouz is listed as number 210 on the new Forbes list of 620 billionaires in the world.
This is already a year in which federal prosecutors are trying to force a New York Times reporter to give up confidential sources while the Federal Election Commission warns that it intends to use the McCain-Finegold Act to question to what degree various kinds of speech are really free or constitute a campaign contribution.
"This is no ordinary legal dispute," states Daniel Korenstein, Ehrenfeld's attorney. "It is perhaps one of the most important First Amendment cases since Sullivan vs. The New York Times."
Sheik Khalid Salim a bin Mahfouz has allegedly endowed and arranged financing for a number of Islamic charity organizations that have been accused of funding terrorism. Ehrenfeld asserts, "There are currently over 10 lawsuits outstanding by numerous plaintiffs in the United States claiming billions of dollars in damages from Mahfouz's alleged involvement in financing the 9/11 attack of the World Trade Center."
On his Web site, Mahfouz says he is "increasingly angered" over accusations such as Ehrenfeld's. "There is no truth to these reports," reads the statement. "We condemn terrorism in all of its forms and manifestations."
In an attempt to circumvent the First Amendment protection of American writers like Ehrenfeld, Mahfouz has successfully sued or settled with over 30 publications and authors for defamation and libel in British courts for years. "That many legal actions brought in a plaintiff-friendly jurisdiction evidences a consistent campaign by Mahfouz to silence any author, journalist, or publication who attempt to analyze or document any role he may have had in funneling the money of the Saudi royal family or wealthy Saudi families to terrorist activities," Korenstein points out.
While the standards for libel and defamation in the United States put the burden of proof on the plaintiff, in the United Kingdom it is up to the defendant. And credible testimony alone does not establish proof. If an author cites a quotation by the former secretary of state, Madeleine Albright, which is attacked as defamatory, the direct testimony of Albright is insufficient proof without the underlying material she based her statement upon.
Because of the heavy expenses involved in countering Mafouz's suits and the very different standards of proof in British courts, authors and publications with assets in the United Kingdom have settled, including The Wall Street Journal, The Washington Post, and The New York Times. (A list of the legal actions is on the Mahfouz Web site.)
But Ehrenfeld never published "Funding Evil" in the United Kingdom. Fewer than 30 copies entered the United Kingdom, presumably through Internet sales and special orders following its publication in the United States in 2003. And yet she had a default judgment entered against her by British Judge Eady on December 7, 2004, for defamation of Mahfouz. A penalty hearing has been set for April 29 to consider Mahfouz's claim for legal expenses and damages, a retraction by Ehrenfeld of the passages objected to in the suit, and injunctive relief preventing any further appearance of her book in the United Kingdom.
"Dr. Ehrenfeld is a respected scholar, who, to my knowledge, does not make irresponsible charges," the former Director of the CIA, R. James Woolsey, who wrote the forward to "Funding Evil," told me recently. "She currently serves with me and former Secretary of State George Schulz on the board of directors of The Committee on the Present Danger. We are dedicated to winning the war on terrorism, and the contribution of members like Rachel Ehrenfeld has been invaluable."
Ehrenfeld is currently the director of the New York-based American Center for Democracy. She has been a research scholar at the New York University School of Law, a visiting scholar at the Columbia University Institute of War and Peace Studies, and a fellow at Johns Hopkins School of Advanced International Studies.
As an American citizen, Ehrenfeld has ignored the Mahfouz British action and default judgment. "If American authors can be silenced by actions of foreign courts in their own home jurisdiction in the United States, what use are the First Amendment guarantees of freedom of speech?" she said. "To establish that protection for myself and other writers, I have sued Mahfouz in the United States Federal Court in the Southern District of New York in December."
According to Floyd Abrams, whose law practice specializes in First Amendment cases, "This is an important issue. It imperils American authors writing for Americans about issues of interest to them. American authors should line up and support the lawsuit."
James Goodale, former general counsel and vice chairman of the New York Times Co., points out that "The Mahfouz suit is totally unfair. Ehrenfeld has not published her book in the United Kingdom. She published it in the United States and has no control over special orders that have the book sent abroad through the Internet."
Mahfouz has not accepted service in America of Ehrenfeld's complaint,and no counsel has appeared for Mahfouz in this matter.
Thomas Lipscomb (email@example.com) is a senior fellow at the Annenberg Center for the Digital Future and a frequent contributor to the Chicago Sun-Times.