The New Criterion

To the Editors:

No disagreement with Stanley Kurtz and Andrew McCarthy (“Free Speech in an Age of Jihad: A Special Pamphlet”) about Canadian hate speech laws, but several points need to be made about their premise that “ill-advised” English libel law is stifling the investigation of terrorism and—what is implicit in their suggestion that such laws are purposefully being used by a malevolent enemy—preventing the actual exposure of terrorists and their sympathizers.

First, they take it as fact that the litigious Mr. bin Mahfouz and his sons have done that which they have been accused of. Have they?

Secondly, if, as they both suggest, Dr. Ehrenfeld’s book was the result of a responsible investigation, then even if untrue its contents would have been protected by the Reynolds defense mentioned by Mr. Kurtz. It didn’t spring into existence with Jameel v. Wall Street Journal, as Andrew McCarthy suggests, though it is quite true that publishers can take heart from the way the House of Lords has now directed trial courts to apply the defense. But the defense has existed since 2001. Dr. Ehrenfeld and her publisher could and should have availed themselves of it. The same goes for Alms for Jihad, and the presumed spinelessness of Cambridge University Press.

Rather, despite initially engaging lawyers, publicly insisting that the proceedings would be defended, and foreshadowing a defense of truth (but not a Reynolds defense), Dr. Ehrenfeld and her publisher decided to ignore the proceedings, or, to use Mr. Kurtz’s cant phrase, “boldly denied British jurisdiction” (smell the tealeaves).

Mr. Kurtz says that Dr. Ehrenfeld, and I infer her publisher, were “without resources.” Assuming that to be correct, a moment’s reflection is enough to appreciate that indigence—or unwillingness to spend money on legal representation—cannot in principle be a defense to civil proceedings, in England or anywhere else (though the indigence of the “McLibel” defendants served them well in the European Court of Human Rights). If Mr. Kurtz had been named as a supporter of terrorism in a book that touted itself as well researched, reliable, and based on government sources (or, perhaps more realistically, if Mr. Kurtz’s copyright was being infringed), but the defendant was “without resources,” I doubt Mr. Kurtz would say: “the poor fellow can’t afford a lawyer. I’ll leave off.”

Thirdly, Mr. Kurtz’s view of English libel law oversimplifies the issues involved. He dismisses English libel law as “nineteenth century,” a historically inaccurate criticism but in any event one devoid of content. On other occasions I can recall seeing the pejorative use of the epithet “nineteenth century” laughed at in these pages.

He describes English libel law as “highly favorable to plaintiffs” (especially, one might add, when the defendant ignores the proceedings). But if that is a correct statement, it is only so in comparison with U.S. libel law. Any calumny can be written and published about a public figure—generously defined—in America, even negligently, as long as the author doesn’t know it’s false, or is not recklessly indifferent to its truth or falsity.

It is not self-evident that the U.S. has got the balance right, or that its libel law is a model to which others should aspire. “The market for ideas has few of the self-correcting features of the market for goods and services,” wrote Robert Bork in “Adversary Jurisprudence” (The New Criterion, May 2002), in relation to expansive interpretations of the First Amendment, and his observation applies with deadly accuracy to the imbalance between powerful mass media corporations and their prey, whose reputations they can destroy with practical impunity.

When Mr. Kurtz urges uniformity in libel law, he is really urging the adoption of American law, characterizing it as a matter of survival of the West. Rubbish. The First and Fourteenth Amendments did not spring into existence, fully formed, as a shield against liability in the law of libel. They say nothing about public figures, actual malice, or libel for that matter. That process began in 1964, when the Supreme Court handed down New York Times v. Sullivan, a decision that, in this foreigner’s opinion, showcases the lawyer’s maxim that hard cases make bad law. Sullivan was a piece of judicial activism of the kind that usually has this journal spluttering with rage.

Finally, Andrew McCarthy’s piece, thoughtful and stimulating, ends on a really nutty note. Mr. McCarthy wants Congress to pass a statute creating a bullying tit-for-tat cause of action that protects “American journalists, and their publishers and sponsors, who are sued in foreign defamation actions based on the U.S. publication of allegedly libelous claims.”

So it works like this. A mediocre American journalist writes an “exposé” about, let’s say, a British national, whose reputation is destroyed. The book is a contemptible, careless effort—I can think of half a dozen real-world examples—but nevertheless the author didn’t believe its contents to be untrue and the carelessness never nears the reckless indifference which the common law equates with knowledge of falsity, and it’s suit-proof at home. It has greater or lesser circulation in Britain, and (like Dr. Ehrenfeld’s book) is partially extracted on the web, for all to enjoy.

The victim decides that since there has been publication, in the legal sense, of the book in Britain, he wants to vindicate his reputation by an action for defamation. There is no defense to it, and in particular the publisher-friendly Reynolds defense is a dead duck, for excellent reasons. Under Mr. McCarthy’s shining new law, the author, and anyone else who is ordered to pay damages by the British court, gets from the American court “damages and costs commensurate with the foreign judgment and expenditures.” And double or triple damages if the publisher persuades the no doubt scrupulously fair jury that it was all a foreign scam to “undermine” the honest American publisher’s toil! I wonder, does Mr. McCarthy insist that the foreign court, whose verdict has been undermined with such breathtaking high-handedness (haven’t they heard of the First Amendment over there?) should obediently enforce the American judgment?

Mr. McCarthy offers the following emollient: “Truly irresponsible journalists who publish malicious falsehoods would still be liable under American and foreign law—the new legislation would protect only writers and publishers who adhere to standards of professionalism.”

That’s humbug. Yes, the statute wouldn’t operate to protect a publisher who is so extraordinarily dishonest as to be liable under U.S. law; but the rest is just weasel words, because “standards of professionalism” are precisely what American libel law does not insist upon, and most other anglosphere libel law does.

Tom Blackburn SC
Sydney, Australia