Free Speech Under Threat

Jillian Bandes

5/20/2009 12:01:01 AM - Jillian Bandes

After feeling pressure from the Council on American-Islamic Relations (CAIR), Sen. Arlen Specter cancelled his appearance at a conference Tuesday on free speech protections, bringing attention to some of the of the very issues the conference was designed to highlight.

“Libel Lawfare: Silencing Criticism of Radical Islam” focused on the prosecution of American citizens under foreign libel laws, which are typically much looser than First Amendment speech protections in the U.S. Foreign laws are commonly targeted at Americans who publish or speak about controversial issues such as Islamic terrorism; if an American criticizes a foreign national and the foreign national doesn’t like it, lawsuits can loom.

Even if the American does not publish or speak in the foreign country in question, the fact that their critical material is available for purchase or viewing on the internet in that country makes it eligible as evidence. This “libel tourism” has resulted in the prosecution of a multitude of American journalists, activists and academics, most notably the case in which author Rachel Ehrenfeld was successfully sued in a court in Great Britain by Saudi Prince Khalid bin Mafouz after she had publicized his al-Qaeda connections.

Sen. Arlen Specter’s absence from the conference came about after CAIR circled a petition about the Senator’s participation in his home state of Pennsylvania. CAIR did not disclose how many online signatures it received, but in a follow-up note, explained its rationale for petitioning Specter to excuse himself.

The view of individuals such as Daniel Pipes, Frank Gaffney and Joe Kaufman are not rooted in facts or rigorous scholarship but are based on conjecture, innuendo, and minority-baiting in service of a narrow political agenda.

At the conference, Gaffney fielded criticism from Wall Street Journal columnist James Taranto about the very need to have a political agenda when addressing the issue of libel tourism. Taranto sought to distance himself from the notion that criticism of Islam is necessarily disrespectful.

“Isn’t that the point?” asked Gaffney.

Gaffney pointed to the recent passage of hate crimes legislation by the U.S. House of Representatives — with strong support from President Obama — as a possible indication that the U.S. could be warming to the loosening up of libel laws, following with policies abroad.

“A President who says we must use respectful language [via hate crimes legislation] is a man who would be comfortable seeing the same deference paid” to those who think criticism of radical Islam is inappropriate, said Gaffney. Specter was a co-sponsor of the hate crimes bill that has yet to pass in the Senate. His office cited “scheduling conflicts” as the reason for his absence from the libel tourism conference.

James Walsh, Senior Counsel for Carter Ledyard and Milburn LLP, said that concern over foreign libel laws influencing U.S. policy was overblown.

“If there is a chilling effect coming over from overseas, I haven’t seen it,” he said.

But Alan Dershowitz, professor of law at Harvard University, said that resting on our laurels with regards to the situation in here isn’t enough.

“We have to export our theory,” he said, emphasizing the importance of “right” enforcement instead of procedural enforcement. “We have to persuade Great Britain that they are wrong.”