Cliff May

Freedom of speech is under attack. Let us count the ways.

The first and most obvious: Those who criticize militant Islamists – from novelist Salman Rushdie to Danish cartoonists to memoirist Ayaan Hirsi Ali – are routinely threatened with deadly violence. It would be black humor to say this is having a chilling effect.

The second is “political correctness.” On campuses and within Western governments it is increasingly taboo to label terrorists who slaughter in the name of Islam “Islamist terrorists.” In Canada, “human rights commissions” attempt to enforce this taboo by putting such writers as Mark Steyn and Ezra Levant on trial for the “crime” of expressing opinions that offend Islamic grievance groups — and also for quoting Islamists accurately and thereby casting them in an unfavorable light. If that’s not Orwellian, what is?

But it is the third approach that could be most consequential for Americans. It’s known as “libel tourism” and here’s how it works: A book published in the United States names an individual abroad who supports terrorist groups. That individual – for the sake of discussion, let’s say he’s a Saudi petro-billionaire with a home in London -- goes online and orders a few copies which arrive in the mail. He takes those books to a British attorney who files a lawsuit complaining that his client has been libeled.

The billionaire knows it will be much easier to prevail in the U.K. than it would be in an American court where the First Amendment and decades of case law provide free speech protections. (Under English law, by contrast, the burden in a libel case is on the defendant to prove his innocence – which can be impossible if he’s been using confidential sources or even just sources who don’t want to cross an ocean and take part in a courtroom battle.)

The legal costs are chump change for the billionaire, while few non-fiction writers command similar resources. If the writer chooses not to spend months living in a hotel and fighting it out in court, the case will be forfeit and he will be hit with a “default judgment.” If he doesn’t pay, he’ll never again be able to set foot in the U.K. and other countries that enforce British court judgments.

But more important is this: The message gets sent, loud and clear, to journalists, scholars and publishers, that researching and writing about terrorists and those who enable them is verboten -- even in America.

Cliff May

Clifford D. May is the President of the Foundation for the Defense of Democracies.