Libel tourism wins a round in US court; Updates

posted at 7:24 pm on December 20, 2007 by Bryan

The nuke on the front page isn’t tongue in cheek. This is a major decision, and it’s not good.

New York’s highest court turned down a chance today to protect American authors from libel judgments awarded by foreign courts.

The case decided today, which pits a Saudi billionaire against a New York-based researcher, was a test of how New York’s courts will respond to concerns that the First Amendment rights of American authors are being undermined by libel judgments imposed abroad, especially in Britain.

Today the Court of Appeals in Albany said that New York law did not allow the researcher, Rachel Ehrenfeld, to seek a court order saying that a British judgment against her was unenforceable under the First Amendment. The Court said it did not have jurisdiction over the Saudi financier and that Ms. Ehrenfeld’s suit to block the judgment must be dismissed.

The court’s opinion, written by Judge Carmen Beauchamp Ciparick, an appointee of Governor Cuomo, largely sidesteps any of Ms. Ehrenfeld’s First Amendment considerations.

Of “libel tourism,” the decision states: “However pernicious the effect of this practice may be, our duty here is to determine whether defendant’s New York contacts establish a proper basis for jurisdiction.”

I’d like to hear from the lawyers out there as to where this case leaves us. Ehrenfeld is a US citizen and her book wasn’t published in the UK. Her book entered the UK via Amazon, yet a UK court saw fit to award bin Mafouz damages against her and ordered her to apologize and keep her book, which hadn’t been published in the UK, out of the UK. There is no way she can reasonably be expected to do that, even if you assume that her book is libelous (which is dubious, to say the least). The UK court ought not to have ruled on the case at all, as it has no standing to judge a US citizen whose work wasn’t published in the UK. But it did, and now the US court has decided not to protect US citizens against this pernicious use of the UK’s courts. The questions now are a) what’s the next recourse for Dr. Ehrenfeld and b) is the UK court’s decision enforceable in any way on a US citizen?

It seems to me that Congress will have to take the issue of libel tourism up and pass a law to protect American citizens from libel judgments of courts outside the US. Otherwise, our First Amendment rights are at the mercy of the most permissive courts. But with the current leadership in Congress, that doesn’t seem likely.

Our previous coverage of Ehrenfeld’s fight, including an audio interview I conducted with her, is here.

Update: Howard Bashman has a link to the opinion in this post.

Update: Former federal prosecutor Andrew McCarthy weighs in.


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this is crazy

trailortrash on December 20, 2007 at 7:32 PM

This does not make me happy. It seems to me[...] is the same thing I thought when I read the link, but that’s still absurd. If the implication is that when our products/ideas go into the global marketplace we are inherently forfeiting freedom of speech and by extension sovereignty, that’s an extremely high price to pay.

Spirit of 1776 on December 20, 2007 at 7:33 PM

anyone have a link to the opinion?

Medicated on December 20, 2007 at 7:36 PM

Is the NY Court of Appeals competing with the 9th Circuit court?
This would be a very bad precedent is this were allowed to stand.

Kini on December 20, 2007 at 7:38 PM

I’m no lawyer, but shouldn’t this be in the jurisdiction of the federal courts? Can we really expect to conduct coherent international policy guided by 50 different judiciaries? It has to be a federal matter, doesn’t it?

trubble on December 20, 2007 at 7:38 PM

someone should ask if the TV networks are now vulnerable for libel claims.

Then ask about the case where someone, somewhere, say.. uh.. Turkmenistan goes to a court, say in Brussels, and seeks damages from a US Manufacturer whose product emits global pollution; i.e. carbon dioxide.

rockhauler on December 20, 2007 at 7:39 PM

So what now? The US judicial system no longer has jurisdiction over its own citizens? Fan-freaking-tastic…

MadisonConservative on December 20, 2007 at 7:40 PM

Federal issue. This decision has the shelf life of crab sperm.

mylegsareswollen on December 20, 2007 at 7:40 PM

I added a link to How Appealing, which has the pdf of the opinion linked.

Bryan on December 20, 2007 at 7:40 PM

I’m in law school now, and I don’t want to make any uninformed comments on this issue, I haven’t studied international law yet…but I will say that many of my fellow students WANT an international/global type of court to equalize world powers. And I go to a conservative law school (as law schools go…) The next gen of lawyers is alarmingly liberal.

JustTruth101 on December 20, 2007 at 7:43 PM

Medicated, here it is.

Entelechy on December 20, 2007 at 7:45 PM

but I will say that many of my fellow students WANT an international/global type of court to equalize world powers. And I go to a conservative law school (as law schools go…) The next gen of lawyers is alarmingly liberal.

JustTruth101 on December 20, 2007 at 7:43 PM

Sure, they’re going to continue the elitist, PC, multi-culti, one-world drive. Anything short of that is coloquial and dumb, in their view.

Entelechy on December 20, 2007 at 7:50 PM

Our enemies will have a field day if this ruling is allowed to stand. Thanks NY. For nothing.

Zorro on December 20, 2007 at 7:55 PM

B@stard judges. See pg 16 of the opinion, the footnote reveals their thinking:

“The Supreme Court has never approved such a
radical extension of personal jurisdiction as
would sanction the majority’s holding that,
by litigating a bona fide claim in a foreign
court and receiving a favorable judgment, a
foreign party automatically assents to being
haled into court in the other litigant’s home forum.

What the judges are saying is that it is fine for a foreigner to forum-shop and haul US citizens into THEIR courts, but by virtue of them doing that, the US citizen does not have the right to haul the foreigner into OUR courts. Globalist, elitist, soul-sellers. That’s why I’m in law school…I’m signing up to fight from within the system.

JustTruth101 on December 20, 2007 at 7:56 PM

Sure, they’re going to continue the elitist, PC, multi-culti, one-world drive. Anything short of that is coloquial and dumb, in their view.

It’s to be expected. Lawyers (enough of them, anyway) will think they can solve the worlds problems in international courts. Diplomats will advocate endless diplomacy. Bureaucrats (the UN etc.) will insist on more bureaucracy.

My Dad was a pathologist and he told me a story about a case where he was able to help a guy by diagnosing a very unusual condition. The surgeons wanted remove a section of the guy’s jaw. I asked him why they wanted to do that, and he just said “when you’re a surgeon, your solution is to cut.”

trubble on December 20, 2007 at 7:59 PM

Legally this seems to be a standoff. This particular ruling had to do with jurisdiction, whether Mafouz does enough activity in New York for a New York state court to have jurisdiction over him. If so, then Ehrenfeld would be able to sue in New York courts to enforce a prior ruling by a different court that said that foreign libel judgments against US citizens that run afoul of the First Amendment will not be recognized and enforced by US courts. The New York court ruled that it doesn’t have jurisdiction over Mafouz.

I think this still stymies Mafouz, as it seems to me that as soon as he tries to get a US court to enforce the British judgment, that litigation itself might make him subject to jurisdiction in Ehrenfeld’s preemptive litigation.

rokemronnie on December 20, 2007 at 8:03 PM

YAY New York

ThackerAgency on December 20, 2007 at 8:03 PM

JustTruth101 on December 20, 2007 at 7:43 PM

None of the Liberal law students I know want anything like this.

Nonfactor on December 20, 2007 at 8:05 PM

rokemronnie on December 20, 2007 at 8:03 PM

Being that the plaintiff is a general purpose public figure if this case ever goes to a US court for purposes of enforcement it’ll get turned down. I can see how the author can be convicted in a British court, but I don’t see how it can be enforced unless the US sets up an entirely new system to punish those who violate foreign counties defamation laws.

Nonfactor on December 20, 2007 at 8:08 PM

None of the Liberal law students I know want anything like this.

Nonfactor on December 20, 2007 at 8:05 PM

Good news! In what region of the country do you go to law school/practice law? I am in the midwest, maybe I should transfer.

JustTruth101 on December 20, 2007 at 8:09 PM

“I’d like to hear from the lawyers out there as to where this case leaves us … But it did, and now the US court has decided not to protect US citizens against this pernicious use of the UK’s courts.”

I sure like to hea where it leaves us, too. I’m no lawyer, so I don’t know why she started in the NYS court system as opposed to the Federal system. I can see why the NYS system might not be able to provide redress, which might be the reason for the judge’s jurisdictional point made. I can see it being within the jurisdiction of the federal system.

Dusty on December 20, 2007 at 8:09 PM

As Jackson said when the SCOTUS ruled against him in Georgia vs Cherry Nation, they made their decision, now let them enforce it.

…wow I agree with Nonfactor.

TheEJS on December 20, 2007 at 8:09 PM

Lots of irony. Saudi wealth created in some large part by our fuel dollars is used in our legal system to stifle our right to free expression. But, to dilute the sting a bit, our appetite for illegal drugs also helps finance terrorist activity against us. Our fuel consumption and our illegal drug consumption are variables which could be reduced. Hard to blame the Saudis or terrorists for using the largesse we provide them. It’s what they do.

a capella on December 20, 2007 at 8:10 PM

I guess free speech doesn’t pass the “global test.”

John on December 20, 2007 at 8:13 PM

They learn soooooooo fast. Use us against us. I’m impressed.

So when does Hot Air send out the disclaimer forms that we will have to sign and send back before we post?

Limerick on December 20, 2007 at 8:22 PM

The U.S. justice system is obsolete and shold just defer to the U.N. That is where this heading right?

Resolute on December 20, 2007 at 8:23 PM

JustTruth101 on December 20, 2007 at 8:09 PM

Los Angeles, but I’ve also heard from students from Bloomington Indiana and New York.

The most common thing you would hear are complaints about the jury system, but nothing as severe as a global court.

Nonfactor on December 20, 2007 at 8:26 PM

Don’t understand Andy McCarthy saying it’s an “awful” decision. It seems to me the decision is the correct one; it’s the outcome that’s awful. The court was asked to make a narrow ruling and it did that. This is clearly an issue that has to be decided by federal law, not a state appeals court.

Does anyone have information on Mafouz’s claims against Ehrenfeld? What did he say to the British libel court that was so persuasive?

Purple Fury on December 20, 2007 at 8:29 PM

Does anyone have information on Mafouz’s claims against Ehrenfeld? What did he say to the British libel court that was so persuasive?

He won because she didn’t show up to a court in a place where she doesn’t do business. Also, British laws on libel leave alot to be desired.

Canadian Imperialist Running Dog on December 20, 2007 at 8:41 PM

Welcome to the New World Order.

How long until illegal aliens from south of the border will be able to sue back in or have their home countries’ authorities drag US citizens into their home countries’ courts when they they get a boo boo on a US citizen’s property?

Oh, and 2 words that should be strongly stressed here … “Saudi billionaire”.

Where’s that picture of Jorge and Saud holding hands together?

BowHuntingTexas on December 20, 2007 at 8:56 PM

hmmmmmmm Saudi has what…a pocket 4 miles deep? The author? Maybe can pay a lawyer a year or two. So what happens when she runs out of money to defend herself? Does some U.S. Marshall just show up and take her property?

Limerick on December 20, 2007 at 9:01 PM

This is basic CivPro stuff, actually.

For an American court to have personal jurisdiction over someone, he must have what are called “minimum contacts” with the forum state. He must have, in some minimum way, availed himself of the protection of the laws in that forum state, such that it would be a reasonable/fair expectation that he could be dragged into court there. This is a constitutional requirement of the Due Process Clause; there’s no simple way around it.

So the Saudi douchebag travels to England and sues an American citizen there. English courts, which don’t seem to have this “minimum contacts” requirement, assert personal jurisdiction over the American and hand down a judgment against her. The American, seeking to protect herself, sues the Saudi douchebag… but he’s never been anywhere near New York, either in connection with the litigation or otherwise, and so a New York court can’t legitimately assert personal jurisdiction over him.

Centerfire on December 20, 2007 at 9:13 PM

I must be missing something here, as I don’t see the problem. Surely we must allow the UK court system to have jurisdiction over activities in the UK. Last time I checked this story, not only had Mafouz not tried to enforce this in the USA, he had made active efforts to avoid it. So, in the end, Ehrenfeld’s book is banned in the UK and she can’t visit there. That’s sad, but I don’t see what a US court can or should do about it. Is that the terrible result you all are lamenting?

Annoying Old Guy on December 20, 2007 at 9:24 PM

How is it that courts have no jurisdiction over this preposterous ruling in Britain, but they can assume unto themselves all the jurisdiciton they want over Guantanamo?!?

urbancenturion on December 20, 2007 at 10:34 PM

but I will say that many of my fellow students WANT an international/global type of court to equalize world powers.

Well,, if our own courts will not protect us from foreign courts than they will render our constitution meaningless. Ultimately,, that should mean they render themselves meaningless, as well, to the people! The constitution they want to shred for us,, is also the constitution that gives them their power. What do they expect us all to do?? Just sit and allow our properties and lives be controlled or taken by elites in Europe?? This is treason! Can it be explained any other way?? It is another attempt to remove our borders, remove our sovereignty as a nation, destroy our liberties! The Supreme Court had better overturn this! If this is allowed to stand,, it will be only the beginning. This is insane and this judge needs to be removed! My God,, what are we coming to?? Will foreign courts begin to summon American citizens overseas to appear before their courts for violations of their laws???!! Traitors, thieves and liars!! Screw them all!!!

JellyToast on December 20, 2007 at 10:51 PM

Ya’ll are shocked?!? I’m shocked that ya’ll are shocked … the Constitution has been increasingly ignored for the last two centuries and mixes of international law in SCOTUS decisions are nothing new. That an Appeals Court in New York doesn’t want to recognize the soveriegnty of the United States and recognize the First Amendment really shouldn’t surprise anyone. It was just lurking around the corner in a shadow.

Looking forward … I would recommend driving over to the local sprting goods store and exercising your Second Amendment right before that one is “surprisingly” lost. I’d be shocked if you didn’t go this weekend.

AZ_Redneck on December 20, 2007 at 11:31 PM

Don’t be painting this as the idea that our GOD GIVEN rights to free speech must or even can be protected for us world wide by U.S. courts…that simply isn’t so. And if ANYONE here thinks that some sort of “world court” will EVER act in the best interest of the United States or her citizens, then they are smoking the same thing that all the liberal minds are smoking.

Guess what, some idiot in the world outside of the U.S. doesn’t like what an American citizen says, TOUGH…

NRA4Freedom on December 21, 2007 at 9:36 AM

Chew on this!

“New Delhi – India’s eastern state of Orissa has lodged a protest with the US government seeking action against a California-based website for hurting religious sentiments of people by selling undergarments with images of Hindu gods…”

http://www.earthtimes.org/articles/show/162551.html

NRA4Freedom on December 21, 2007 at 9:45 AM

It looks to me like the NY court did exactly what the British court should have done: dismiss for lack of jurisdiction.

Courts spend too little effort on the issues of standing and jurisdiction: if they would be more diligent with these issues, they could eliminate a huge pile of garbage from the judicial system.

When you have a beef with a tin-horn dictator in some third-world country, or a rogue jurist in a major country, the solution is NOT in the US courts!!!

landlines on December 21, 2007 at 9:50 AM

Annoying Old Guy,

The Saudi prince won a monetary award against the author as well. Also, she is supposed to personally destroy any of her books that are in the UK. At least, this is what I believe I read from the Libel Tourism website.

serpentineshel on December 21, 2007 at 2:19 PM

From the site:

“an English judge ordered her to pay over $225,000 in damages and legal costs, to destroy all copies of her book in the United Kingdom, and to publish an apology to bin Mahfouz in major newspapers.”

http://www.thelibeltourist.com/cgi-local/content.cgi?g=7

serpentineshel on December 21, 2007 at 2:23 PM