by Jamie Glazov
Frontpage Interview's guest today is Brooke M. Goldstein, a practicing attorney, the director of the Legal Project at the Middle East Forum and the director of the Children's Rights Institute. She is also an award-winning film producer of The Making of a Martyr, an adjunct fellow at the Hudson Institute, and the 2007 recipient of the E. Nathaniel Gates Award for Outstanding Public Advocacy.
FP: Brooke M. Goldstein, welcome to Frontpage Interview.
FP: We're here today to discuss Islamist Lawfare. What do you think is the best way to start this discussion?
Goldstein: It is important to start by defining the Islamist movement as that which seeks to impose tenets of Islam and Sha'aria as a legal, political, religious and judicial authority both in Muslim states and in the West.
One tenant of Sha'aria law is to punish those who criticize Islam, and to silence speech considered blasphemous against Islam or its Prophet Mohammed.
The Islamist movement has two wings – that which operates violently, propagating suicide-homicide bombing and other terrorist activities, and that which operates lawfully, conducting a "soft jihad," within our court systems, through Sha'aria banking, within our school systems and through organizations such as the Council on American-Islamic Relations and the Canadian Islamic Congress. Both the violent and the lawful arms of the Islamist movement can and do work apart, but often, their work re-enforces each other's.
For example, while the violent arm of the Islamist movement attempts to silence speech by burning cars when Danish cartoons of Mohammed are published, by murdering film directors such as Theo Van Gogh and by forcing thinkers such as Wafa Sultan into hiding out of fear of her life, the lawful arm is skilfully manoeuvring within Western court systems, hiring lawyers and suing to silence its critics.
Islamists with financial means have launched a "legal jihad", filing a series of malicious lawsuits, in American courts and abroad, and against anyone who speaks out against or writes about radical Islam and its sources of financing and support.
This type of lawfare is often predatory, filed without a serious expectation of winning, and undertaken as a means to intimidate, demoralize and bankrupt defendants. The lawsuits are often based on frivolous claims ranging from defamation to workplace harassment to plain Islamophobia, and have resulted in books being banned and pulped, in thousands of dollars worth of fines and in publishing houses and newspapers rejecting important works on counter-terrorism out of fear of being the next target.
FP: Where has this type of lawfare been most successful and least successful? Why? Can you give a few case examples?
Goldstein: Proponents of Legal Jihad are engaging in a technique called forum shopping or libel tourism where Plaintiffs bring actions in foreign jurisdictions and in foreign courts most likely to rule in their favor.
Islamic lawfare is achieving a degree of success in Canadian and European courts because their judicial systems and laws do not afford their citizens, or American citizens for that matter, the same free speech protections granted under the U.S. Constitution.
Though American courts have proven less friendly to Islamist lawfare and have for the most part ruled to protect the exercise of free speech within this country, notwithstanding that fact, defendants who have been victimized by legal jihad in US courts, even if they end up winning their case, in the end they lose in time and money spent protecting their rights when they could have been doing and accomplishing much more productive things.
Within the last ten years, we have seen a steady increase in Islamist lawfare and the litany of American researchers, authors, activists, publishers, congressman, newspapers, television news stations, think tanks, NGOs, reporters, student journals and others targeted for censorship is long and merits brief mentioning.
In 1998, America Online (AOL) permitted chat rooms in which voluntary participants could post comments and talk to one another about issues involving the Koran and Islam in general. One Muslim visitor to the chat room named Saad Noah considered posts by other third party visitors blasphemous and defamatory against Islam. Noah then sued AOL for libel, attempting a class action on behalf of all Muslim chat room participants, and claiming that AOL wrongfully refused to prevent participants from posting anti-Islamic comments. The court properly dismissed the case against AOL for Noah's failure to state a cause of action. This case established an important precedent by refusing to extend liability to the host of an Internet chat room for third party posts and by upholding the free speech rights of the chat room participants to criticize Islam.
In 2003 the Washington based Council on American Islamic Relations (CAIR), sued former U.S. Congressman Cass Ballenger after an interview with the Congressman was published in the Charlotte Observer wherein Ballenger described CAIR as a "fundraising arm for Hezbollah," who the Congressman had reported as such to the FBI and CIA. Fortunately, the judge ruled Ballenger's statements were made in the scope of his public duties and were constitutionally protected speech in the interest of public concern.
The following year, CAIR instituted a 1.3 million dollar lawsuit against Andrew Whitehead, an American activist and blogger, for maintaining the website Anti-CAIR-net.org, on which CAIR is described as an Islamist organization with ties to terrorist groups. Ironically, after CAIR refused Whitehead's discovery requests, seemingly afraid of what internal documents the legal process (it had initiated!) would reveal, CAIR withdrew its claims against Whitehead, a settlement was reached between the parties and the case was dismissed by the court with prejudice. Despite CAIR's failed effort at intimidation, Whitehead's Anti-CAIR website is still up and running along with the text that was at issue.
In 2005, The Islamic Society of Boston (ISB) filed a lawsuit charging defamation against over a dozen defendants including the Boston Herald, FOX 25 News, Steven Emerson and several others. The defendants were targeted by ISB for publicly speaking about the Islamic Society's connections to radical Islam and for raising questions about the construction of its Saudi-funded mosque in Boston. A full two years after it had initiated the lawsuit, and just a few months after the discovery process was initiated into ISB's financial records, ISB dropped its case and abandoned all of its claims against all of the Defendants, without receiving any form of payment.
In line with the old adage that actions speak louder than words, the fact that both ISB and CAIR abandoned their claims right before they would have been required, by court order, to turn over internal documents speaks volumes about whether the two Plaintiffs had ever intended to pursue their claims of defamation or had instead, intended to use the court system to intimidate the Defendants as well as other journalists, into not reporting on their activities.
Last year, Joe Kaufman, an American activist and the chairman of Americans Against Hate, traveled to Texas to lead a peaceful ten-person protest against the Islamic Circle of North America (ICNA), an organization that has been tied to Pakistani radical Islamic groups. During Kaufman's peaceful protest he was served with a harsh temporary restraining order as well as a suit alleging defamation and harassment. What is particularly troubling about Kaufman's case, is that the suit was not filed against him by ICNA, but by seven Dallas area plaintiffs who had never previously been mentioned by Kaufman, nor had they present at Kaufman's protest. The case is currently being litigated in Texas while Kaufman who lives in Florida is forced to spend his own money on travel and hotel accommodations in order to defend his rights to free speech and peacefully assemble.
Another case that is currently ongoing is that of Bruce Tefft. Tefft is a former CIA official and worked as a counter-terrorism consultant for the NYPD. After sending out emails to a voluntary list of police officer recipients containing articles about terrorism and the threat of radical Islam –Tefft, was named co-defendant along with the NYPD, in a suit by a Muslim John Doe New York City Police Officer alleging workplace harassment because as a Muslim, John Doe was personally offended by Tefft's emails, despite the fact that he volunteered to be on Tefft's email list.
Sometimes American authors and publisher wrongfully targeted are able to take advantage of Anti-SLAPP statutes, the acronym being anti-Strategic Litigation Against Public Participation.
Anti-SLAPP statutes have been enacted in several, but not all, US states and are aimed at preventing lawsuits designed to hinder legitimate public dialogue. The problem, however, with anti slap statutes is threefold – not all states have enacted them, there is no federal equivalent and third, one must wait to be sued in order to take advantage of them.
Such was the case when American author Matthew Levitt and his publisher Yale Press were each sued by KinderUSA for Levitt's book "Hamas", in which Levitt describes KinderUSA as a charitable front for terror financing. In response to the lawsuit, Levitt and Yale Press instituted a counter-claim based on California's Anti-SLAPP statute arguing that KinderUSA's suit was a disguised attempt at wrongfully intimidating them into silence. Shortly after the counter-claim was filed, KinderUSA mysteriously dropped their lawsuit claiming only, that it found the suit too costly to pursue.
Most disturbing however, are the examples of parties sued for reporting on official U.S. government investigations into terrorist activities, or for formally appealing to government authorities to conduct investigations into suspected terrorist activity – Parties targeted in this vain include The New York Times which, in 2001, reported on the US Government's investigation of the Global Relief Foundation and was subsequently sued; The Wall Street Journal which, in 2002, reported on the monitoring of Saudi bank accounts and was also sued; and the Anti Defamation League which, in 2002, called for the investigation of a public school superintendent named Khadja Ghafur, based on indications that schools under his supervision were teaching religion in violation of the establishment clause. Ghafur predictably sued ADL for libel and lost but only after much time and money was spent by ADL defending itself.
FP: Can you give us some examples of libel tourism and forum shopping in particular – especially that which is occurring in England and Canada?
Goldstein: UK courts, because of their libel laws, are particularly friendly jurisdictions for Islamists who want to restrict the dissemination of material drawing attention to radical Islam and terror financing.
Where, in the United States, with our First Amendment rights to free speech, libel plaintiffs not only have the burden to prove that the speech in question is false and defamatory, but where matters of public concern are at issue, the libel Plaintiff must also show that the speech was published with a reckless disregard for the truth.
In England, on the other hand, the burden is in exactly the opposite direction: the offending speech is presumed to be false, and it is up to the defendant to prove that it is in fact true. While on the surface the difference may seem trite, UK libel jurisprudence, in direct contrast to US law and due process considerations, effectively operates to declare Defendants guilty before proven innocent and UK courts have become a magnet for libel suits that would otherwise fail miserably in the US.
And so heavy is the burden of proof put on the defendant that the mere threat of suit in a UK court is enough to intimidate publishers into silence, regardless of the merit of their author's works.
A major player on this front is Khalid bin Mahfouz, a wealthy businessman who resides in Saudi Arabia and who has been accused by several parties of financially supporting Al Qaeda. A notable libel tourist, Mahfouz has sued or threatened to sue more than 30 publishers and authors in British courts, including several Americans, whose written works have linked him to terrorist entities.
Faced with the prospect of protracted and expensive litigation, most of the parties targeted by Mahfouz have issued apologies and retractions, while some have paid fines and "contributions" to his charities.
In 2007, when Mahfouz threatened to sue Cambridge University Press for publishing the book Alms for Jihad, by American authors Robert Collins and J Millard Burr, Cambridge Press immediately capitulated, offered a public apology to Mahfouz, took the book out of print, destroyed the unsold copies of the book and demanded that libraries all over the world remove the book from its shelves, a directive several American libraries refused to follow.
Shortly after the US publication of Rachel Ehrenfeld's book entitled Funding Evil, Mahfouz sued Ehrenfeld for defamation because she too had written about financial ties between Mahfouz and terrorist entities. The allegations against Ehrenfeld were heard by the UK court despite the fact that neither Mahfouz nor Ehrenfeld resides in England, while and the court asserted jurisdiction over her merely because approximately 23 copies of Funding Evil were sold to UK buyers online via Amazon.com.
Unwilling to travel to England or acknowledge the authority of English libel laws over herself and her work, Ehrenfeld lost on default and was ordered to pay heavy fines, apologize, and destroy her books -- all of which she refused to do. Instead, Ehrenfeld went on the offensive and counter-sued Mahfouz in a New York State court seeking to have the foreign judgment declared unenforceable in the United States.
Ironically, Ehrenfeld lost her case against Mahfouz, because the New York court decided it lacked jurisdiction over the Saudi resident who, the court said, did not have sufficient connections to the state. Shortly afterwards and in direct response to the court's ruling, the NY state legislature, in an unprecedented show of cross party solidarity, unanimously voted to enact the Libel Terrorism Protection Act which prevents the enforcement of foreign libel judgments over American authors and provides the opportunity for the claim to be tried in the US, on its merits, and according to American principles of free speech.
Canada, with its "human rights" commissions, joins the list of countries whose laws are being used to attack the free speech rights of anti-Islamist activists. What is particularly disturbing about the Canadian Human Rights Commissions is that under its section 13 "hate speech" laws, the court costs of any one Plaintiff who files a section 13 complaint are entirely subsidized by the government, while the defendants are left to endure the financial burden of litigation alone. This is a rule that, on its face, obviously encourages frivolous litigation. Moreover the Canadian commissions have a one hundred percent conviction rate on section 13 charges!
Those summoned to appear before the Canadian Human Rights commissions include Maclean's magazine and award-winning author Mark Steyn whose trials are ongoing. The complaints against them were initiated by the Canadian Islamic Congress (CIC) based on the re-publication of excerpts from Steyn's book entitled "America Alone", which the CIC argues in its complaint is, quote "flagrantly Islamophobic".
The CIC, whose president Mohamed Elmasry once labelled every adult Jew in Israel a legitimate target for terrorists, has previously tried, albeit unsuccessfully, to sue publications it disagrees with in regular Canadian courts of law, including Canada's newspaper the National Post, but has now turned to the Canadian commissions for support.
After re-publishing the Danish Cartoon of Muhammad in the now defunct Western Standard Magazine, noted Canadian lawyer and blogger Ezra Levant, was also hauled before the Canadian commissions on charges of hate crimes against Muslims.
FP: What does the future look like in this vein? Do you think this tactic will continue to be used by Islamists?
Goldstein: Well, as you can see from the select case examples of Islamist lawfare that I mentioned, which I must stress represent only a small fraction of the problem, the threat of Islamist lawfare is real, and legal jihad is gaining momentum with a ripple effect. This phenomenon is one that we can neither afford to ignore nor allow to continue unabated, and judging from the past we must expect that Islamists will engage in future legal efforts along the same lines.
Indeed, Muslim leaders have begun to lobby the UN to outlaw the defamation of Islam, while the Islamic Society of North America and the Muslim Public Affairs Council have both stated publicly that they are considering filing defamation lawsuits against their critics. In addition, the Muslim World League has called for the establishment of an independent commission to take legal action against parties who defame their Prophet Mohammed, and during the recent two-day summit in Dakar, taking legal action against those who slander the Islam was a key issue reportedly debated at length by Muslim leaders.
For its part, CAIR has announced an ambitious fundraising goal of $1 million, in part to; "defend against defamatory attacks on Muslims and Islam," and one of its staffers, Rabiah Ahmed, has publicly stated that lawsuits are increasingly an 'instrument' for it to use."
FP: What threat does Islamist Lawfare pose to our constitutional rights and national security?
Goldstein: The cumulative effect of the suits abroad, and here at home even if they are not successful, combined with the looming threats of future lawsuits is creating a detrimental chilling effect on the exercise of free speech within this country and is raising the cost of public dialogue and debate about radical Islam because naturally, people want to avoid costly litigation, regardless of the merit of their speech.
Yet, the Islamist lawfare challenge presents a direct and real threat not only to our constitutional rights, but also to our national security because left unabated, this phenomenon has the potential to seriously hinder the flow of information on the threat of Islamic terrorism.
Islamists should not be allowed to stifle constitutionally protected speech, nor should they be allowed to subject innocent citizens who talk to other citizens about issues of national security to frivolous and costly lawsuits and the Legal Project is working to instil the separation of mosque and state, and of mosque and judiciary, and to prevent principles of Sha'aria law from creeping into our legal system.
FP: Some say that everyone has the right to sue and have their day in court and that in reality, criticism of Islam is akin to incitement to violence against Muslims. How do you counter this logic?
Goldstein: Well, you call it out for exactly what it is, perverse logic that flows from a deeply flawed understanding of US law and from political correctness, with an Orwellian like outcome if actually followed through –We have people who are inciting the destruction of America, inciting violence against Christians, Jews and all infidels which includes moderate Muslims, preaching to violently overthrow the western value system and who are then turning around and utilizing western court systems and democratic laws to sue people who are exposing these facts, all under the thin guise of blasphemy and civil rights.
What is the result if this is allowed to continue with impunity? Basically the establishment and institutionalization of religious thought police who are, ironically, supported by the very western court systems they are dedicated to destroying. Look at the example of Gert Wilders and his film Fitna, what the media and UN Secretary General Ban Ki Moon find controversial is not the fact that Jihadists are teaching children to slit the throats of 'infidels' hiding behind rocks, but what they find controversial is that Wilders has the guts to expose this and through, no less, the words and deeds of the perpetrators themselves. Before the film was released, European politicians were going around begging their Muslim constituents not to riot while at the same time they were turning around and trying politically and legally manoeuvre to stop the release of the film.
Instead of solving the problem by tackling its root cause, they want to appease a violent population and suppress the efforts of others to peacefully expose the threat of radical Islam.
The US was founded on the premise of freedom of worship but also on the principle that one is free to criticize religion. Free speech is about granting everyone the right to speak short of defamation, obscenity and incitement to immediate violence and, if you don't support your opponent expressing ideas and opinions that you may disagree with, then you don't support free speech or the notion of free speech as defined by the Supreme court of the United States.
Conversely, and contrary to misguided popular opinion, there is no absolute right to sue in American courts especially based on a frivolous claim, and there is no such thing as the defamation of a large group of people or of a religion or a race, the concept simply does not exist in American jurisprudence. American courts are not religious thought police, blasphemy is not an actionable crime or civil violation and there is simply no right to sue someone for insulting your religion. That is what makes this country so great. If you can put Jesus in a bowl of urine you can draw a few cartoons of Mohammad.
Goldstein: It is imperative that our judicial system and state legislatures continue to enforce American authors' and activists' rights to free speech and free assembly against all parties attempting to stifle them, here and abroad. But more importantly, civilians who are on the receiving end of defamation lawsuits as a result of their critical work need our protection, they need our financial support and they require adequate, affordable legal representation.
Dr. Daniel Pipes, director of the Middle East Forum and having been himself a target of Islamist lawfare, was one of the first people to recognize the seriousness of the threat and last spring, Dr. Pipes established the Legal Project (LP) to counter it.
The Legal Project works in five distinct ways to provide an effective defense to jihadi lawfare as well as to offensively combat it.
First and foremost, lawyers are on the front line of this battle and the LP has been working to establish an international network of attorneys ready and willing to stand guard against assault. In this vain, the Project maintains a confidential list of lawyers who have committed themselves to working as pro-bono or reduced rate counsel for anti-Islamist researchers wrongfully targeted by jihadi lawfare. We strive to match these attorneys up, according to their jurisdiction and expertise, with clients who appeal to us for help.
With competent attorneys who are affordable, accessible and ready to respond and counter-attack, we can lesson the chilling effect of lawsuits on the exercise of free speech and instill confidence in our experts to continue disseminating their works on radical Islam.
Second, the LP provides legal research support and assistance for its Clients at all stages of litigation, and helps with depositions, discovery, memos and other litigation-related activities. We submit supporting documents to the court such as amicus briefs in our capacity as informed parties and write law review articles analyzing past and present cases.
Third, the LP works in various ways to raise awareness of this issue within the political, legal, academic and counter-terrorism communities, and to educate Americans on their First Amendment rights to free speech and assembly.
We work to make known the law and various legal defenses available to American researchers, including the defense of malicious prosecution, and the right to criticize and report suspicious activity to the government and the police, as well as the right to speak publicly on matters of imminent pubic concern. We disseminate relevant news items to our mailing lists and encourage public debate on the issue. The LP is also working to solicit the participation of law schools, state bar associations, law faculty and legal clinics and we have visited various law schools and University campuses to lecture to students and conduct seminars about the phenomenon. The LP also works to encourage the enactment of legislation such as Anti-SLAPP statutes and the Libel Terrorism Protection Act and we have begun to track and analyze lawfare cases looking for patterns and in order to ascertain trends as well as sources of financing.
Fourth, the Legal Project embarks on fundraising efforts to financially support the victims of Islamist lawfare, and the unique thing about the LP in this aspect is that we are not fundraising for ourselves but to directly assist victims of Islamist lawfare with their court costs and legal fees.
Current clients of the LP include Bruce Tefft and Joe Kaufman, each of whom we have secured pro bono counsel as well as provided legal research support and assistance. We are also assisting Rachel Ehrenfeld in her quest for justice and for whose case the LP submitted an amicus brief that analyzed for the court the historical context of the threat. The LP also succeeded in filing a Memo in Support of the Libel Terrorism Protection Act with the NY State Legislature working in coordination with Senator Skelos and Assemblyman Lancman.
Finally, the LP is capable of positioning itself on the offensive, supporting counter claims by anti-Islamist researchers, and we have recently succeeded in causing The Muslim Weekly publication, a UK-based Islamist magazine, to issue an apology and retraction of an article it published which repeated false and defamatory statements about Dr. Pipes. Hence, those parties who recklessly and wrongfully defame our researchers should beware that their actions will not go without a legitimate counter- reaction.
FP: What else can be done to counter this threat and to support American counter-terrorism researchers?
Goldstein: Besides what the LP is doing in terms of arranging for pro bono counsel, financial assistance and legal research assistance to those targeted and besides our own public educational initiatives - Attorneys and judges need to exercise discretion when choosing, respectively, to take on clients or to hear cases. Attorneys have an ethical duty not to file frivolous and malicious lawsuits and can lose their license for repeat offenses, while judges must learn to recognize when a case should be thrown out at its initial stages for failing to state a cause of action or for disguising non-issues of law as facts that should be litigated on their merits.
State legislatures need to enact anti-SLAPP legislation where none already exist, that are clear, applicable and which give non ambiguous directives to judges as well as impose penalties on those who are caught filing SLAPP suits – state and federal lawmakers should also enact similar laws such as the Libel Terrorism Protection Act, and these laws should provide pre-emptive causes of action to victims of libel tourism and Islamist lawfare so that they can use American courts to proactively protect their rights against people who try to intimidate them from afar – Finally, the television, radio and print media as well as the legal and political communities must start giving this issue the attention it deserves and work to spark fruitful public debate and discussion on the topic. Americans citizens must be informed and then have to decide where they stand on this issue and express outrage at the attempt to stifle their rights while judges must know that they are being watched and their decisions on such cases analyzed.
After all, this is not a left or right issue, this is a non-partisan issue, and an issue for anyone who is concerned with free speech in this country. Which all begs questioning - where is the ACLU on this problem? Where are other constitutional and free speech organizations and foundations? Why aren't they speaking out when the victims of their silence are American counter-terrorism researchers? Why is the media virtually silent when they too are the victims of this lawfare?
Finally, and in terms of what can be done about libel tourism abroad, I am sorry to say that not much beyond our statesmen speaking with politicians of foreign countries, lobbying them to enact their own legislation limiting the scope of their own courts' jurisdictions, and preventing their laws from unnecessarily overreaching across borders. Also, there is always the option of a multi-state treaty between countries in which it is agreed not to try foreign nationals on defamation charges when there are not sufficient connections to the state, but then, of course, defining what are sufficient connections may prove a contentious issue and is really at the heart of the problem here – Remember, it only took twenty-three copies of Rachel Ehrenfeld's book to be sold to online buyers for a UK court and its Judge Eady to assert jurisdiction over Ehrenfeld. Its also important to note the current split in the UK between their trial and their higher courts of appeal on the issue of what constitutes defamation and what speech is un-actionable as a matter of public concern. We need to follow these developments closely.
FP: Brooke M. Goldstein, thank you for joining Frontpage Interview.
Goldstein: Thank you.
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