A Shield for Free Speech, but no Sword against Islamist Lawfare, Yet
by Aaron Eitan Meyer
On September 27th, the House of Representatives took a significant step towards ending the predatory practice of libel tourism, whereby certain wealthy Islamists would file frivolous and malicious defamation lawsuits with the aim of abolishing public discourse critical of Islam. The House, by unanimous voice vote, passed H.R. 6146, a bill that prevents any domestic court from enforcing or even recognizing foreign defamation judgments unless the court makes a determination that the foreign judgment is in accordance with First Amendment principles. As such, it is a first step against libel tourism, perhaps the most well-known, though not most widely used, tactical application of Islamist lawfare.
Unfortunately, this bill does not represent a major counter-strike against the strategy of Islamist lawfare itself. Islamist lawfare presents a clear and present danger to the United States, by seeking to silence critics of radical Islamist ideology through various legal methods ranging from defamation suits to unsubstantiated claims of "Islamophobia," a modern day ad hominem attack somehow amalgamated into United Nations Human Rights resolutions,1 and even some US domestic policies.2
Prior to the introduction of this bill, a more comprehensive bill was brought in both the House and the Senate, by Representative Peter King and Senators Arlen Specter and Joseph Lieberman, respectively. Known as the Free Speech Protection Act of 2008, that bill included a federal cause of action for those targeted by these foreign judgments, to be brought after the domestic court made the determination that the foreign judgment was not in accordance with First Amendment principles.
The federal cause of action would include a mechanism similar to domestic anti-SLAPP (anti-Strategic Lawsuits Against Public Participation) lawsuits, in which individuals or groups targeted by predatory defamation suits are able to file a counterclaim against the original plaintiff in order to recover damages based on the abuse of legal process that original plaintiff employed in order to silence its critic.
The Free Speech Protection Act represented a direct strike not only against libel terrorism, but against the strategy of lawfare, the strategy of using Western legal systems to further the aims of international terrorism. It would have provided individuals like Rachel Ehrenfeld with a means of directly and forcefully responding to attempts to silence them, a figurative sword to wield against those who would pervert our legal systems to further their war against us as well as a shield against the predatory suits themselves.
This author does not mean to lessen the critical importance of the protection H.R. 6146 will provide to researchers, but merely to emphasize the crucial fact that a tactic has been responded to, not the lawfare strategy itself. Even under this bill, academics and researchers would still have to endure a farcical trial in a foreign court before they could bring an action here to block recognition or enforcement of the foreign judgment.
As Representative King stated in the Congressional Record, though "...it is a first step in the right direction ... it doesn't put an end to the problem and doesn't provide any deterrence from these suits being filed in the first place." During the next Congressional session, it is imperative that members of both houses come together to, again in the words of Representative King, "...sit down together and craft a bill that we can all agree on and that will solve this problem once and for all."
At times in this nation's history, there has been a tension between national security and the freedom of speech and of the press in times of war, where Congress and the courts have had to find a balance in order to protect competing critical rights and responsibilities. Here, Congress is in the perhaps unprecedented position of being able to further national security goals not by abridging freedom of speech, but by strengthening it, encouraging it, and indeed mobilizing it. The threat posed to America by Islamist lawfare is in every way a 21st century threat, but it is one that provides the opportunity for a 21st century solution.
In June 1971, Judge Murray Gurfein, trial judge of the seminal free speech case involving the Pentagon Papers, immortally stated that, "The security of the nation is not at the ramparts alone. Security also lies in the value of our free institutions."3
Right now, our free institutions are among the ramparts upon which our nation's security depends. Even as our military forces and intelligence agencies work to defeat international terrorism, so too must we be given the chance to directly protect ourselves and our cherished institutions from the insidious threat posed by Islamist lawfare. Free and unrestrained speech on matters of public interest is perhaps the cherished institution in American history. As Supreme Court Justice Frank Murphy said, in Thornhill v. Alabama, "The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern, without previous restraint or fear of subsequent punishment."4
The key point is that on every level, Islamist lawfare seeks to pervert our traditions of free speech in order to serve its own purposes, namely to institute Shari'a law as binding authority in western nations. Indeed, the strategy perfectly illustrates the dire warning issued by Supreme Court Justice William O Douglas, who wrote, "Without debate on foreign issues and policy we become prisoners of those who manipulate opinion."5
Congress has taken a step towards freeing us from the looming shadow created by libel tourism, but must recognize that libel tourism is the barest tip of the multi-layered iceberg that is Islamist lawfare, representing only one tactic. And as in any war, though a shield is essential to survival, any army equipped only with shields will soon find itself on the losing end. For the American people, and indeed the citizens of all Western nations, the sword that must be wielded is open and informed discussion on the nature of the Islamist threat. Then, and only then, can this country effectively prosecute a war on Islamist terror in all its forms.
1 UN Human Rights Council Resolution 7/19. Combating defamation of religions
5 William O Douglas, Freedom of the Mind Doubleday & Co. NY 1964, at p. 34
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