Protecting Our Freedom of Speech: The SPEECH Act Now Before the Senate

Update: the Judiciary Committee has passed the SPEECH Act; it now goes to the full senate

As an American citizen who has spent seven years fighting against and promoting awareness of the threat of libel tourism to American free speech rights, I am writing in support of the S 3518, the “Securing the Protection of our Enduring and Established Constitutional Heritage Act,” or the “SPEECH Act,” now before the Senate Judiciary Committee.

The SPEECH Act marks a critical step in the defense of American national security and the freedoms of expression that form the cornerstone of our democracy. The Act protects these First Amendment guarantees by guarding authors and publishers from enforcement of frivolous foreign libel judgments from countries that do not have the United States’ strong free speech protections. Such suits, which have been pressed with increasing frequency worldwide over the past several years, have been used as a weapon to silence American researchers, scientists, reporters, bloggers and others.

American writers and media outlets have been sued for libel in England, Ireland, Canada, Australia, Brazil, France, Singapore, and others. They were forced into expensive lawsuits abroad, staining their reputations, discouraging research in their fields, and depriving the American public of vital information.

The SPEECH Act grants “a cause of action for declaratory judgment relief against a party who has brought a successful foreign defamation action whose judgment undermines the First Amendment,” and provides for legal fees in certain situations. It will help diminish the severe chilling effect such suits are having on publishers and authors investigating matters of public interest, such as national security, personal health, and safety.

My experience, which gave rise to the New York State “Libel Terrorism Protection Act” (also known as “Rachel’s Law”), upon which the SPEECH Act is based, demonstrates why this legislation is urgently necessary.

I am a New York-based scholar and have authored three books and hundreds of articles on terror financing, corruption, money laundering and narco-terrorism. In my last book,

Funding Evil: How Terrorism is Financed – and How to Stop It, I documented how a Saudi billionaire, the late Khalid bin Mahfouz, had funded al-Qaeda, Hamas, and other terrorist organizations. Mahfouz sued me for libel in London, attempting to use the plaintiff-friendly British libel laws to silence me. He had used this tactic to bully more than forty authors, and publishers – including many Americans – into apologies and retractions of similar revelations.

Since I never lived in England and had not published or marketed my book abroad, I refused to acknowledge the jurisdiction of the British courts. Incredibly, my refusal led the judge – without hearing a case on the merits, and in my absence – to make a declaration of falsity. He then issued a default judgment against me, ordering that I pay a hefty fine, apologize, retract my statements and pay Mahfouz’s substantial legal fees.

I countersued Mahfouz in New York, asking for a declaratory judgment to prevent the enforcement of the English judgment on the grounds that such enforcement would violate American First Amendment protections of free speech.

Soon after the Second Circuit Court of Appeals dismissed the suit for lack of jurisdiction over Mahfouz, the New York State Legislature enacted the Libel Terrorism Protection Act, enabling New York courts to have jurisdiction over foreign plaintiffs who sue New York State authors and publishers abroad for libel.

Since 2008, six other states have recognized the threat posed by libel tourism and frivolous foreign suits and have passed legislation similar to “Rachel’s law”, to neutralize the chilling effect of extraterritorial libel suits. These states are: Illinois, Florida, California, Maryland, Utah and Tennessee.

But writers and publishers in the vast majority of American states still remain vulnerable to this form of lawfare from abroad. This threat looms larger with the increasing globalization of news and Internet writing.

The SPEECH Act – introduced Senators Patrick Leahy (D-VT) and Jeff Sessions (R-AL), and cosponsored by Senators Arlen Specter (D-PA), Chuck Schumer (D-NY) and Joesph Lieberman (I-CT) – will help deter libel tourism and secure Americans’ right to speak, write, and publish freely to preserve our safety and the integrity of our democracy. It should pass swiftly.