ABOUT THE CASE
The story begins in 2003, when Dr. Rachel Ehrenfeld published her third book, Funding Evil: How Terrorism is Financedand How to Stop It, which meticulously details the clandestine networks through which terrorist organizations obtain their funding.
Her book quickly drew the ire of Khalid bin Mahfouz, a billionaire Saudi banking magnate. A serial "libel tourist," Mahfouz has filed numerous lawsuits in English courts against various authors and publishers, many of them American, to silence allegations that he has covertly channeled money from his vast fortune to al-Qaeda, Hamas, and other radical terrorist organizations.
That Ehrenfeld had named him in connection with terror financing made him want to silence her, toobut Funding Evil had been published only in the United States, whose libel laws place the burden of proof upon the plaintiff. On the basis that 23 copies of Ehrenfeld's book had been purchased on the Internet and imported to the United Kingdom, a jurisdiction where libel laws effectively deem defendants guilty until they prove themselves innocent, Mahfouz instead brought a defamation suit against Ehrenfeld in London's High Court of Justice.
Ehrenfeld, an American-Israeli criminologist who lives and works in New York, refused to acknowledge the authority of a British court over her freedom of speech. She did not appear in London to defend herself, and when she lost the case by default, an English judge ordered her to pay over $200,000 in damages and legal costs, to destroy all copies of her book in the United Kingdom, and to publish an apology to Mahfouz in major newspapers.
She refused. Instead, she countersued Mahfouz in New York, hoping to set a precedent that would protect the free speech of American authors from foreign libel rulings. Prominent civil liberties attorney Harvey Silverglate described her countersuit as one of the most important First Amendment cases in the past 25 years. Unfortunately, the New York State Court of Appeals ultimately dismissed Ehrenfeld's case in December 2007, after finding a lack of personal jurisdiction over Mahfouz.
At this point, legislators decided to take up Ehrenfeld's cause. In April 2008, the New York State Legislature passed the bipartisan Libel Terrorism Reform Act, colloquially known as "Rachel's Law," which ensured that the state's courts could enforce foreign libel judgments only when they satisfied "the freedom of speech and press protections guaranteed by both the United States and New York Constitutions." Other states, including Illinois, California, Florida, New Jersey, and Hawaii, have since introduced or passed analogous legislation.
In September 2008, the U.S. House of Representatives passed the Cohen-Issa libel tourism bill, which prohibits the recognition and enforcement of foreign defamation judgments in the United States. Since then, congressmen Peter King (R-NY) and Anthony Weiner (D-NY) have introduced the even more authoritative Free Speech Protection Act 2009, which would allow authors such as Ehrenfeld to countersue libel-tourist plaintiffs for treble damages.
In May 2009, the New York Times issued a strongly worded editorial in support of federal legislation. "Congress should pass one of these versions of the law, preferably the tougher one," wrote the paper. "If authors believe they are too vulnerable, they may be discouraged from taking on difficult and important topics, like terrorism financing, or from writing about wealthy and litigious people. That would not only be bad for writers, it would be bad for everyone."