Does Sharia Libel Law Now Apply in the U.S.?

When truth = slander

A narrow, technical New York Appeals Court decision rendered last month essentially means that American writers and publishers can be held subject to Islamic law. Alyssa Lappen explains how. by Alyssa A. Lappen

Unless the U.S. Congress and New York legislatures act immediately to stop them, foreign terror financiers and libel tourists now can essentially impose sharia (Islamic) law on American writers and publishers.
Intended or not, a narrow, technical New York Appeals Court decision on Thursday Dec. 20, 2007 produces that net effect.

The ruling concerns jurisdiction in Dr. Rachel Ehrenfeld’s suit against Saudi billionaire Khalid bin Mahfouz, seeking a federal declaratory judgment against him to render unenforceable in the U.S. a U.K. High Court default “libel” decision. By implication, the New York Appeals Court ruling harms all publishers and writers in New York, the world’s publishing capital.

Ehrenfeld’s case stems from her 2003 book, Funding Evil: How Terrorism is Financed—and How to Stop It, where American Center for Democracy Director reports Mahfouz’ well-documented terror funding. (Full disclosure: Since September 2005, I’ve been an ACD Senior Fellow.)

As always after such terror financing reports, Mahfouz sued Ehrenfeld for libel in Britain. His attorneys informed U.K. High Court Justice David Eady that former CIA director R. James Woolsey wrote her book’s foreword. “Say no more,” Eady replied. “I award you a judgment by default, and if you want, an injunction, too.”

Eady then ordered Ehrenfeld to apologize, retract, pay Mahfouz $225,913.37 in damages and destroy remaining copies of her book. Instead, she ignored the British default judgment and false libel claim—never tried on its meritsand asked the Southern District Court of New York to rule the U.K. judgment unenforceable here.

In the U.S., the Supreme Court’s seminal 1964 New York Times v. Sullivan decision defined libel or slander by a journalist as stating or writing falsehoods or misrepresentations that damage someone’s reputation—and in cases of public figures, doing so with malice.

Under sharia, by contrast, libel constitutes any oral or written remark offensive to a complainant, regardless of its accuracy or intent. Slander “means to mention anything concerning a person that he would dislike, whether about his body, religion, everyday life, self, disposition, property, son, father, wife, servant, turban, garment, gait, movements, smiling, dissoluteness, frowning, cheerfulness, or anything else connected with him,” according to Ahmad Ibn Lulu Ibn Al-Naqib (d. 1368).

Repeat: Sharia regards even the truth as slander if its subject dislikes the facts. Now applied through foreign courts, sharia law interpretations of libel have demonstrably undermined U.S. press viability already.

Though Mahfouz never proved merits in any libel case, he has threatened or sued more than 35 journalists and publishers (including many in the U.S.) through Britain’s High Court, and exacted fines, apologies and retractions from all but Ehrenfeld. Last Thursday, New York’s Appeals Court substantially (if not intentionally) allowed the application of sharia rules here.

New York State recently held that it can collect sales taxes from “commercial” enterprises with as little physical presence as a single link on any New York-based website. While temporarily reversed on November 15, the state’s controversial opinion will be enforced after the 2007 Christmas more here


Blogger Kevin T. Keith said...

Well, this is certainly a terrible outcome, and there are severe problems with the expansive reach of UK libel judgments, but this case is really not that outrageous from a legal standpoint, and it has absolutely nothing to do with sharia, in the UK or the US.

The background is this: British libel trials are famously favorable to the plaintiffs; there is no free speech protection as in the US, so a defendant has to be prepared to prove that every single word they wrote is true or they will be found liable for damages. Plaintiffs often prefer to sue in UK courts if they can for this reason. Worse, the British courts have begun finding that almost anything that is even potentially available in the UK - for instance, through - has been "published" there, so they are now accepting suits against foreign authors who are not carried by a British publisher or even have books for sale in the UK. This is what Mahfouz has been taking advantage of, to bring harassment suits against anyone who criticizes him. And clearly, this is a problem.

But the libel suits are conducted entirely under traditional British law. I have no idea where the quote about libel under sharia comes in; it has absolutely no bearing on this case or any other British libel case. The definition of libel under British law is roughly the same as anywhere else: to falsely accuse someone of something reprehensible. The only difference is that there is an absolute burden of proof on the person saying it. Sharia is not part of a libel trial in the UK, no matter who the plaintiff is, and it was not part of the judge's decision in this case.

In Ehrenfeld's case, she lost her libel suit because she made no effort at all to defend against it. Not only is the quote about sharia irrelevant, but the strange anecdote about the James Woolsey forward is equally irrelevant. Whatever that exchange may mean, it has nothing to do with why she lost her case.

As you yourself note, Ehrenfeld was subject to a default judgment. That is, she automatically lost her case in the British court because she didn't bother to defend it, or even show up for the trial. Default judgments are standard in every legal system. As the New York court decision you linked clearly states, she and her US lawyers were duly informed of the suit pending in the UK, and she made a decision, which she herself admits, not to hire a British lawyer or attempt to try the suit both because of the difficulty of winning and because of her ideological belief that the UK libel standard was wrong and she should not have had to defend herself there. Given her refusal to enter any defense, there was no possible outcome other than that the court would find against her. It would be the same in a US court, or anywhere else. You are right that the libel case was never tried on its merits, but that was Ehrenfeld's decision. The plaintiffs were (apparently) prepared to put forth their side of the case; she refused to put forth her own side, and the case was not tried because she refused to let it come to trial.

The New York court's decision was not very surprising either. She was asking the court to vacate a valid ruling in a British court that she herself had refused to acknowledge. In other words, she was essentially asking the US court to declare that US citizens do not have to accept decisions from lawsuits in foreign countries if they personally don't choose to do so. Of course the court was not going to do that. The technical grounds for the ruling - that she cannot countersue someone in a US court with whom she had no contact in the US - is somewhat ironic, given the British court's decision that she could be sued in the UK even though her book is not published there - but the basic idea - that she doesn't have to accept a foreign court's judgments if she doesn't like them - is hardly controversial.

The problem is the British judiciary's belief that, essentially, anyone can sue anyone for libel in the UK, regardless of whether anything any of them have done actually took place in the UK. That trend is causing a real problem in publishing. But it has nothing whatsoever to do with sharia or the CIA, and Ehrenfeld's legal problems, though galling, are not some sort of travesty. They are in part the result of her own refusal to believe the law applies to her.

3:56 PM  
Blogger greenconsciousness said...

I just copied this Sharia post here. Your extremely perceptive rebuttal comments need to be copied and placed under the original article which I linked to where i say, "read more here".

I wish you had said more about why it is a bad decision. Perhaps you will under the original post. Your comments are very helpful. Please copy them over there.

Then After you do that, I hope you go over to "Cheslers Chronicles". She is on the same site. That is a blog where we often post about the threat of Sharia law.

Perhaps you do not know that Canada is very close to allowing Sharia to govern their family court for Muslims. THERE IS AN ENTIRE CANADIAN SITE DEVOTED TO THE PROBLEM - STOP SHARIA LAW oops sometimes my caps go on by accident. Anyways - thanks for the info. I admire the clarity of your writing. GC

4:38 PM  

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