Combating Libel Lawfare

by Andrew C. McCarthy

Radical Islam's apologists abuse courts to shut down criticism.

It has become fashionable in Washington to speak of “false choices” — “the false choice between our values and our security” or “the false choice between our liberties and our national defense,” for example. Apparently, we don’t need to make these choices.

I often wonder, while standing in the body-search line while trying to get on an airplane, or trying to get into Yankee Stadium, or trying to enter a federal courthouse, whether any sensible person really thinks the conflict between the things we want to do and the security we need to do them is a “false choice.” Most people, I would guess, view such choices as a matter of common sense, and an inevitable part of life.

To make such choices is often hard, calling for maturity and judgment. To deny that they have to be made is childish and irrational.

It is not a matter of choosing between, for example, our security and our values. Our security is one of our values. Indeed, it is the one that makes the liberties we cherish more than mere parchment promises.

The difficulty is that our values don’t exist in a vacuum. They conflict and compete. Even vital ones — values everyone concedes the importance of — are sometimes overcome by values of even greater significance.

This is especially dramatic when the value is an individual right we hold dear, and it collides with a value that is critical to the life of our body politic — critical to the arrangements a free society such as ours must have in order to thrive.

That is the essence of the debate over “libel tourism.”

No one in his right mind would contend that protecting a person’s good reputation is not a critical value. We do honor reputation. Our law protects it, as our law should, from defamation. But reputation is a value. It is not an absolute. And it would be preposterous to say that the value we place on reputation is not in tension with the value a functioning republican democracy places on the free exchange of information — especially in matters of great public significance. It would be just as preposterous to say that to acknowledge this tension, and to attempt to resolve it, is to make a “false choice.”

The choice our society has made is to give the free exchange of information, our so-called marketplace of ideas, precedence over concerns about reputation. Under U.S. law, enshrined in our First Amendment, journalists have a right to be wrong.

The journalist has a minimal obligation of diligence. Truth is a defense to an allegation of libel, but the journalist need not prove it. The burden is on the person who claims he has been defamed to show that the journalist was not only wrong but — particularly in the case of a public figure — maliciously or recklessly false.

The rest of the world, including our good friends and forebears in the U.K., has not adhered to these enlightened standards. Though there are promising signs of potential change in British law, other nations have imposed on the journalist the burden to prove the truth. That, of course, is their choice.

But we choose to follow our own model, and that’s our choice. What’s more, we’ve elevated these enlightened standards to the status of fundamental rights. We’ve agreed in our fundamental law to be governed by them. And for good reason: We are a free, self-determining people. Government is formed to serve us, not the other way around.

If information cannot be freely exchanged, if journalists must fear being sued over information reported in good faith on matters crucial to our defense — matters such as the financial networks supporting jihadist terror — then we cannot make sound security policy. We become dependent on government — in all its dysfunction and political correctness — with no means to evaluate its performance or induce it to change. We become reliant on government for our information. In fact, we become hamstrung even in our efforts to learn what little the government is willing to reveal.

Funding Evil, for example, is the book at the center of the libel-tourism storm. The author, Rachel Ehrenfeld, was sued for alleged defamation in Great Britain despite making no attempt to market the book there. What was Dr. Ehrenfeld’s supposed offense? For the most part, her book merely repeats allegations about jihadist financing that had already been made in official U.S. government documents and testimony. Yet, Sheikh Khalid bin Mahfouz — one of the world’s richest men, who has boundless litigation resources — targeted her for suit, a tactic he has successfully used about three dozen times to suppress reporting about Saudi connections to terrorism.

Under British law, it was not enough for Dr. Ehrenfeld to say, as any good journalist might say, “I’m just reporting what the United States government has said.” She was expected to prove the allegations were true, even though, as a journalist, she had no access to classified information and no subpoena power to compel government witnesses to come forward and substantiate the claims they had made.

From this we must draw several necessary conclusions.

First, it is argued that the international order calls for comity between nations — that the United States should not force its standards on other countries. But proposed laws to combat libel tourism — in particular, the one sponsored by Rep. Pete King in the House and by Sens. Arlen Specter and Joe Lieberman in the Senate — do not coerce any nation to adopt our First Amendment. They merely say that if you want to enforce a libel judgment against someone in the United States, you must extend that person the equivalent of the free-speech protection he or she would be entitled to under American law. If you don’t, you still have your libel judgment and you can enforce it wherever on earth you can find a country that will respect it — but not here.

Moreover, the proposal for an affirmative cause of action — i.e., the creation of a new kind of civil suit for use against abusive litigants like Sheikh bin Mahfouz — would not coerce any country to adopt or enforce our libel law. It would simply tell the libel tourist: If you scheme to deprive an American of a fundamental constitutional right, you can no longer do it with impunity. We will arm Americans with reciprocal power to sue you for damages in a court far away from your home — albeit in an American federal court that will surely give you a fairer shake than American journalists have gotten in the British court that has become known as “the Club Med for libel tourists.”

Finally, comity among governments is all well and good. I wouldn’t want to say or do anything to spoil a good State Department cocktail party. But the primary duty of the United States government, as it relates to the rest of the world, is to protect the fundamental liberties of the American people. Again, that is the reason the American people created their government — even if that fact occasionally miffs what we like to call the “international community.”

That’s not a false choice. It is the only right choice.

— National Review’s Andrew C. McCarthy is a senior fellow at the National Review Institute and the author of Willful Blindness: A Memoir of the Jihad (Encounter Books, 2008). This article is adopted from a speech delivered at “Libel Lawfare: Silencing Criticism of Radical Islam,” sponsored by the Middle East Forum, the Federalist Society, the Center for National Security Law, and the Thomas Jefferson Center for the Protection of Free Expression.