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.