Freedom of speech is under attack. Let us count the ways.
The first and most obvious: Those who criticize militant Islamists — from novelist Salman Rushdie to Danish cartoonists to memoirist Ayaan Hirsi Ali — are routinely threatened with deadly violence. It would be black humor to say this is having a chilling effect.
The second is political correctness. On campuses and within Western governments it is increasingly taboo to label terrorists who slaughter in the name of Islam "Islamist terrorists." In Canada, "human rights commissions" attempt to enforce this taboo by putting such writers as Mark Steyn and Ezra Levant on trial for the "crime" of expressing opinions that offend Islamic grievance groups — and also for quoting Islamists accurately and thereby casting them in an unfavorable light. If that’s not Orwellian, what is?
But it is the third approach that could be most consequential for Americans. It’s known as "libel tourism" and here’s how it works: A book published in the United States names an individual abroad who supports terrorist groups. That individual — for the sake of discussion, let’s say he’s a Saudi petro-billionaire with a home in London — goes online and orders a few copies, which arrive in the mail. He takes those books to a British attorney who files a lawsuit complaining that his client has been libeled. The billionaire knows it will be much easier to prevail in the U.K. than it would be in an American court, where the First Amendment and decades of case law provide free-speech protections.
The legal costs are chump change for the billionaire, while few nonfiction writers command similar resources. If the writer chooses not to spend months living in a hotel and fighting it out in court, the case will be forfeited and he will be hit with a "default judgment." If he doesn’t pay, he’ll never again be able to set foot in the U.K. and other countries that enforce British court judgments.
But more important is this: The message to journalists, scholars and publishers is that researching and writing about terrorists and those who enable them is verboten — even in America.
What can be done to protect Americans from having our speech restricted by foreign terrorist financiers, foreign lawyers, foreign judges and their toadies?
Reps. Peter King, R-N.Y., and Anthony Weiner, D-N.Y., have introduced the Free Speech Protection Act of 2008, which would give Americans who find themselves in the situation described above a "federal cause of action" to sue right back — and to claim legal fees, costs and significant damage awards as well if a U.S. court concludes that the foreign suit was "a scheme to suppress First Amendment rights."
What’s more, the bill would provide "expedited discovery": The plaintiff would be compelled to disclose information and documents relevant to the charges — something few investors in terrorist enterprises are eager to do.
On the Senate side, the bill is being shepherded by Sens. Joe Lieberman, DI-Conn., Arlen Specter, R-Pa., and Charles Schumer, D-N.Y. What obstacles are preventing this bill from being passed into law?
First, not enough backers — so far, at least — are from the majority party: Of 10 sponsors on the House side, only one is a Democrat. Second, we’re deep into the presidential campaign season, a time when very little moves on Capitol Hill. Third, never underestimate the ability of the Saudis, their lobbyists, their allies and their courtiers to kill that which interferes with their interests.
Clifford D. May is president of the Foundation for the Defense of Democracies, a policy institute focusing on terrorism. His column is distributed by Scripps Howard News Service.