Jihad Jane's Allies in the Courts
By Rachel EhrenfeldNY Daily News
March 15, 2010
The zeal with which Colleen LaRose, aka "Jihad Jane," (above) pursued a fatwa to kill the publishers of the "Mohammed cartoons" - 12 drawings of a turban-wearing bearded man with a bomb, released in 2005 in Denmark, Sweden and elsewhere - comes as no surprise. She went so far as to travel to Europe with the intention to kill Swedish cartoonist Lars Vilks in a way that would frighten "the whole Kufar [nonbeliever] world."
This is a well-understood strategy of terrorists: Using violence or the threat of violence to intimidate those who dare resist their jihad, who dare defend secular, Western values.
But another less violent but highly potent weapon is also being employed. It involves "lawfare" - exploiting pro-plaintiff libel laws to silence authors and publishers who write about Islamic terrorism. It is common not only in Europe, but surprisingly right here in the United States.
The Feb. 26 apology by the Danish newspaper Politiken for publishing the cartoons proves the success of this tactic.
In 2006, a few months into radical Muslims' violent demonstrations against those illustrations, the newspaper's publishers visited me in New York City. Discussing my own embroilment with an unjustified libel suit by a Saudi, which had been filed against me in London, the publishers recommended that settling was the optimal approach to a potentially expensive suit.
Four years later, Politiken seems to have taken its own advice, caving in to Saudi pressure and apologizing for its simple exercise of free speech.
This predictable apology illustrates the difference between the free speech protections afforded in Denmark and those guaranteed in the United States. If Denmark had laws similar to the American traditions of heightened speech protection, Politiken would have faced far less of a threat in the Danish courts than it did.
Still, not even the robust protections of the First Amendment to the U.S. Constitution have been capable of safeguarding the rights of American writers, artists and others from terrorist sympathizers seeking to silence us in international courts.
In recent years, claimants have exploited the anti-free speech bias of the laws in many nations to secure libel judgments against American authors and publishers for statements made in the United States.
By suing an American writer abroad in courts lacking our constitutional protections for freedom of speech, a claimant might win a libel judgment that would fail in the United States - and then try to enforce that judgment in the United States, at great emotional and financial expense to the defendant.
I was an early casualty of this tactic. After I published a book with information showing how Saudi billionaire Khalid bin Mahfouz funded Al Qaeda, Mahfouz sued me for libel in the United Kingdom in 2005. As I did not live or publish the book in England, I refused to acknowledge the jurisdiction of the British court over my case; that resulted in a default judgment against me.
I petitioned a New York federal court to declare the British judgment unenforceable. The case ultimately led to the enactment, in New York State, of the Libel Terrorism Protection Act in May 2008. Similar laws have since been passed in Illinois, California, Florida and Utah, and are pending in Maryland and Arizona.
But what we really need is a single, strong federal law to once and for all lift the dark cloud of censorship.
The Free Speech Protection Act now pending before Congress - sponsored by Sen. Chuck Schumer (D-N.Y.) in the Senate and Rep. Pete King (R-L.I.) in the House - is exactly that. It would protect American illustrators, scholars, journalists and bloggers from libel judgments rendered in countries with lesser protections for free speech than the United States affords. The bill applies only to judgments given in countries where the authors do not have sufficient personal or professional ties, and allows for collection of legal fees and, when appropriate, damages from the libel tourist.
The bill is not meant to change British libel laws or impose "an American legal hegemony ... to the financial advantage of publishers in the United States," as one English lord has claimed. No act of Congress could do that.
It is simply aimed at safeguarding Americans' rights to free expression, as enshrined in our Constitution.
The Jihad Janes of the world may seek to kill those who don't share their fanatical views. Others in league with her seek to silence all of us. The passage of the Free Speech Protection Act will guarantee that Americans keep the liberties that Europeans, tragically, are losing by the day.
Ehrenfeld, author of "Funding Evil: How Terrorism Is Financed - and How to Stop It," is director of the Manhattan-based American Center for Democracy.