Adam Cohen, a member of the New York Times’ editorial board, has written a persuasive column against the practice of “libel tourism,” a kind of forum-shopping in which plaintiffs sue for libel in a jurisdiction that heavily favors them. He heralds the case of Rachel Ehrenfeld, the American author of Funding Evil: How Terrorism Is Financed and How to Stop It, a book that accuses a Saudi billionaire, Khalid bin Mahfouz, of funding terrorism. Even though her book was never published in Great Britain, bin Mahfouz sued her there for libel there since the country’s libel laws tend to protect harms to personal reputation more than free speech. (He was able to obtain jurisdiction over her simply because 23 copies of the book were bought in the country online.) Rather than putting up what was likely to be a losing fight against a plaintiff with effectively unlimited financial resources, she chose not to defend herself, and bin Mafouz received a default judgment against her.
If this all sounds familiar, it’s because the September issue of COMMENTARY was ahead of the curve with Andrew C. McCarthy’s “Can Libel Tourism Be Stopped?,” an article that skillfully criticizes the Ehrenfeld case and libel tourism in far greater detail. In particular, McCarthy, unlike Cohen, notes that bin Mafouz has successfully pulled this speech-chilling tactic on a number of occasions.
It’s nice to see Cohen defending American free speech in its conflict with British law, but is he heading toward a possible inconsistency here? In past columns, Cohen has praised the activist jurisprudence of Justice Steven Breyer, including his willingness to look to foreign opinion when interpreting the U.S. Constitution:
When [Breyer] switched sides on the juvenile death penalty, he wrote a thoughtful opinion noting both that the American people had turned against it and that “the overwhelming weight of international opinion” opposed it.
But although America was an exception when it came to the juvenile death penalty, it is also an exception when it comes to freedom of speech, especially when it comes to offensive and “hate” speech. Would Cohen support the Supreme Court’s relying on “the overwhelming weight of international opinion” when interpreting the First Amendment?
After all, when bemoaning libel tourism, Cohen is happy to appeal to the judgment of the United Nations Human Rights Committee, which, he notes, “criticized [British libel law] last month for discouraging discussion of important matters of public interest.” Yet in March, the United Nations Human Rights Council passed a resolution against religious defamation, singling out “attempts to identify Islam with terrorism, violence and human rights violations.” Likewise, in both 2006 and 2007, the United Nations General Assembly adopted resolutions to combat religious defamation, again with a focus on protecting Muslims from verbal attacks. Now, perhaps one can dismiss these sorts of resolutions as being unrepresentative of “international opinion,” but that is beside the point. Representative or not, they do not shed any light on American rights and freedoms—something Cohen seems to recognize, at least when it gets him the result he likes.
Libel tourism is wrong, but so is the world-tour theory of constitutional interpretation.