Parashat Naso: Libel Tourism

Deborah Lipstadt is Dorot Professor of Modern Jewish and Holocaust Studies at Emory University.  The author of “History on Trial: My Day in Court with a Holocaust Denier,” she fulfills her role as a public intellectual at her blog, www.lipstadt.blogspot.com

This week’s Parasha, Naso, addresses the duties the Priests were obligated to perform in the Ohel Moed [Tabernacles].   I am reading Torah for the first time this Shabbat and repeated reading of the text has led me to think about the Priests’ specific leadership position in the realm of ritual.  What they had to do was clear, prescribed and detailed. Yet, I wonder if the people ever looked to them for other forms of guidance and leadership. Were they considered wise counselors or elders in other realms of Jewish life back then?    

It’s a question I deal with on a personal level, as a Jewish academic. On the university campus, there are academics who feel that their job is to remain within the confines of their study and produce work which will enhance the world’s storehouse of knowledge.  We all owe them a great deal.  Their work has enriched us greatly.

In recent years there has emerged another kind of academic, the Public Intellectual.  They try to find a way to mesh their scholarly work with their commitment to changing society.  That is why my work with the Wexner Foundation is so gratifying.  However, it can be a tricky row to hoe, because the lure of the public arena can be so strong that one’s scholarly work is left neglected on the back burner. 

It is a struggle with which I repeatedly contend.  Yet when I feel strongly about something, my first inclination is to turn to my computer and bang something out.  I hope that somehow what I write will change people’s ways.  Many of these articles never – for a variety of obvious reasons -- see the light of day. 

In the following instance, not only did the article, which I co-authored with my colleague, Rabbi Michael Broyde of Emory’s Law School, and which addressed the dangers of “Libel Tourism,” appear on the New York Times’ Op-Ed page, but it has helped spearhead the introduction of a law in the House of Representatives. (http://www.nytimes.com/2007/10/11/opinion/11lipstadt.html)

Our concerns were prompted by the case of Rachel Ehrenfeld, an American who wrote Funding Evil: How Terrorism Is Financed and How to Stop It.  In it she argued that the Saudi billionaire Khalid bin Mahfouz has financed Osama bin Laden and other terrorists.  Bin Mahfouz sued Ehrenfeld for libel in Britain, where – as I know from personal experience – the law puts the burden on authors to prove the truth of what they wrote and not, as in the United States, to prove the falsehood.  She did not fight and bin Mahfouz won a default judgment.  The court ordered her to apologize, destroy all copies of the book, and pay the Saudi roughly $230,000 in damages.

Here’s the twist, though: in contrast to my book, her book was not published in the UK.  Bin Mahfouz’s lawyer had simply bought about 25 copies of it over the internet and had them shipped to London.  This, the British court ruled, constituted doing business in the UK and made her subject to its libel laws.  Hence our use of the term “Libel Tourism.” 

This decision by the UK courts produced an immediate chill among American writers and publishers.  Until this case, Americans could safely assume that unless their books were actually published in Britain, they would not be subject to its rather draconian libel laws. Now it appears that wealthy and powerful people, who object to something that has been written about them, can seek out a country with sympathetic laws, have the book in question shipped there, and then sue.

It is not inconsequential that bin Mahfouz has a history of challenging those who have accused him of links to terrorism. He has sued or threatened to sue an array of publications.  He has actually brought legal action against at least four different books. He has won many of these cases by default or through settlements, because authors don’t have the very deep pockets that he has. 

In our op-ed, we called for Congress to pass legislation to prevent American courts — state or federal — from enforcing libel judgments issued by foreign courts, so that anyone wishing to sue an American for libel must do so in the United States.  [Such a law would not protect authors, such as me, who choose to publish in foreign countries.  And that is entirely fair.] 

American lawmakers listened.  Within a few days of the publication of our op-ed, we were contacted by people on Capitol Hill who asked for our help in drafting such legislation.  The resulting bill, H.R. 6146, was introduced last week by a bi-partisan group of members of Congress.  Spearheaded by Rep. Steve Cohen,  the legislation was co-sponsored by House Judiciary Committee Chairman John Conyers and nine members of the Committee (Issa, Nadler, Berman, Coble, Lofgren, Jackson-Lee, Wexler, Johnson, and Gutierrez), along with Reps. Mark Udalland and John Yarmuth.  A similar, though not identical, bill has been introduced in the Senate by Senators Arlen Specter and Joseph Lieberman.

They are now seeking other members of the House to join them in this effort.  If they succeed, the bill will be on its way to becoming law and the American conception of freedom of speech will be protected.

Now back to my computer.