Does Sharia Libel Law Now Apply in the U.S.?
A narrow, technical New York Appeals Court decision rendered last month essentially means that American writers and publishers can be held subject to Islamic law. Alyssa Lappen explains how.
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Unless the U.S. Congress and New York legislatures act immediately to stop them, foreign terror financiers and libel tourists now can essentially impose sharia (Islamic) law on American writers and publishers.
Intended or not, a narrow, technical New York Appeals Court decision on Thursday Dec. 20, 2007 produces that net effect. The ruling concerns jurisdiction in Dr. Rachel Ehrenfeld’s suit against Saudi billionaire Khalid bin Mahfouz, seeking a federal declaratory judgment against him to render unenforceable in the U.S. a U.K. High Court default “libel” decision. By implication, the New York Appeals Court ruling harms all publishers and writers in New York, the world’s publishing capital.
Ehrenfeld’s case stems from her 2003 book, Funding Evil: How Terrorism is Financed–and How to Stop It, where American Center for Democracy Director reports Mahfouz’ well-documented terror funding. (Full disclosure: Since September 2005, I’ve been an ACD Senior Fellow.) As always after such terror financing reports, Mahfouz sued Ehrenfeld for libel in Britain. His attorneys informed U.K. High Court Justice David Eady that former CIA director R. James Woolsey wrote her book’s foreword. “Say no more,” Eady replied. “I award you a judgment by default, and if you want, an injunction, too.”
Eady then ordered Ehrenfeld to apologize, retract, pay Mahfouz $225,913.37 in damages and destroy remaining copies of her book. Instead, she ignored the British default judgment and false libel claim–never tried on its merits–and asked the Southern District Court of New York to rule the U.K. judgment unenforceable here.
In the U.S., the Supreme Court’s seminal 1964 New York Times v. Sullivan decision defined libel or slander by a journalist as stating or writing falsehoods or misrepresentations that damage someone’s reputation–and in cases of public figures, doing so with malice.
Under sharia, by contrast, libel constitutes any oral or written remark offensive to a complainant, regardless of its accuracy or intent. Slander “means to mention anything concerning a person that he would dislike, whether about his body, religion, everyday life, self, disposition, property, son, father, wife, servant, turban, garment, gait, movements, smiling, dissoluteness, frowning, cheerfulness, or anything else connected with him,” according to Ahmad Ibn Lulu Ibn Al-Naqib (d. 1368). 1
Repeat: Sharia regards even the truth as slander if its subject dislikes the facts. Now applied through foreign courts, sharia law interpretations of libel have demonstrably undermined U.S. press viability already. Though Mahfouz never proved merits in any libel case, he has threatened or sued more than 35 journalists and publishers (including many in the U.S.) through Britain’s High Court, and exacted fines, apologies and retractions from all but Ehrenfeld. Last Thursday, New York’s Appeals Court substantially (if not intentionally) allowed the application of sharia rules here.
New York State recently held that it can collect sales taxes from “commercial” enterprises with as little physical presence as a single link on any New York-based website. While temporarily reversed on November 15, the state’s controversial opinion will be enforced after the 2007 Christmas season.
Yet, also by New York fiat, Constitutional First Amendment rights now take a back seat to the state’s conservative “long-arm” statutes–which protect distant commercial enterprises from state courts. A Saudi national suing an American journalist in Britain, Mahfouz hired numerous New York agents and couriers and used many New York electronic and telephone communication systems expressly to halt Ehrenfeld’s investigations and publications concerning terror finance. However, on Dec. 20 the New York Appeals Court established Mahfouz’ New York-based commercial transactions as less commercial (or significant) than a distant merchant’s sales link on a New York-based website.
In its unanimous June 8, 2007 request for a local ruling on jurisdiction, the U.S. Second Circuit Court of Appeals panel specifically extended as wide a berth as possible to the New York Court of Appeals to consider First Amendment rights within the context of Ehrenfeld’s case.
However, the New York Court ignored the federal instructions to consider Constitutional issues–or the effects this case will consequently have on Constitutional rights in the world’s publishing capital. “However pernicious the effect of this practice [libel tourism] may be, our duty here is to determine whether defendant’s New York contacts establish a proper basis for jurisdiction,” wrote Judge Carmen Beauchamp Ciparick, an appointee of former Governor Mario Cuomo.
Shockingly, New York’s Court of Appeals allowed Mahfouz’ commercial actions (and any similar commercial actions of any other foreign terror financier and libel tourist) to subjugate Constitutional First Amendment rights to archaic commercial statutes.
Now, the U.S. Congress and New York legislators must swiftly enact new “long-arm” statues, suitable to our electronic age, before further damage to the U.S. Constitution ensues.
NOTE:
1Ahmad Ibn Lulu Ibn Al-Naqib (d. 1368), Reliance of the Traveller: The Classic Manual of Islamic Sacred Law Umdat, translated by Nuh Ha Mim Keller, 1991 and 1994, Amana Publications (revised ed., 1994), p. 730.
Alyssa A. Lappen, an American Center for Democracy Senior Fellow and American Congress for Truth Contributing Editor, is a former senior editor of Institutional Investor, Working Woman and Corporate Finance and former associate editor of Forbes.
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19 Comments
David Thomson:“Now, the U.S. Congress and New York legislators must swiftly enact new “long-arm” statues, suitable to our electronic age, before further damage to the U.S. Constitution ensues.”
Democrats don’t want to touch this crisis with the proverbial ten foot pole. This issue is virtually ignored in the MSM. Most people have never heard of it. We are living in a very dangerous time.
Jan 2, 2008 - 3:49 am Tristan Phillips:Err…The decision doesn’t say that. The court said, essentially, that they can’t do anything until Mahfouz comes to the US to try and enforce the UK judgment. Once Mahfouz comes to the US to enforce the judgment the case can be refiled.
IMO a correct ruling.
Jan 2, 2008 - 4:54 am Kevin:Correct me if I am wrong, but I thought a US Federal court ruled the UK judgment unenforceable in the US based on the First Amendment, before the ruling by the NY court. If this is the case the NY ruling is insignificant in that it doesn’t change the initial Federal court ruling. The only wrong ruling would have be to uphold the UK court ruling. It does leave the door wide open to sue the little arab weasel when he sets foot in the states. The author has neither won nor loss in the sense that her options are still wide open. But she has won here in the US because she is still free to write and have her work published.
Jan 2, 2008 - 7:55 am Robert Craig:What needs to be done at this time is a law suit needs to be brought against the judge for failure’s to perform his duties of separation of church and state. It has no representation of the judges religious beliefs but on his inability to understand the definitive difference of secular and cannon guidance.
We are the United States of America and not the United Nations of the World. What has happened is exactly what the “Tali ban” accused America of doing. Infringing our will on other nations and civilizations. It is also the ultimate goal of extremist Islam to impose their rule and belief on others.
If this ruling stands it will be a very short jump to forcing women to wear “burkas” in public and beating them for exposing skin.
I, for one, will encourage every writer to take what has now been ruled in New York provocative action, to discriminate the truth and expose the extremist and their goals.
We must preserve our independence and sovereignty as Americans and subjugate ourselves and children to the rule of other countries.
Jan 2, 2008 - 8:22 am greenconsciousness:I dont think federal courts trump state courts unless the issue concerns federal law or Constutional law. Only the Supremes can reverse state court rulings. Can anyone else provide guidance here?
Jan 2, 2008 - 8:37 am Bill Levinson:We should remind all New Yorkers that, as jurors, they have no legal obligation to enforce any law that they consider unfair or arbitrary. (See the Fully Informed Jury Association for more information.) New York has many laws that no one has any moral duty to obey (I am not going to actually advise anyone to break a law no matter how dishonest, corrupt, or immoral it is) or, as a juror, any duty to enforce.
Of course, New York can claim the right to collect sales tax on entities with no business presence in its borders until it is blue in the face, but what is it going to do if said entities simply treat the state with the total contempt and lack of respect it deserves? Same for Michael Bloomberg’s efforts to enforce his city’s gun laws in Virginia–VA gun dealers should have simply treated him with public contempt and disrespect like the bipedal piece of trash he is.
Similarly, Rachel Ehrenfield was right to treat U.K. High Court Justice David Eady like the bipedal piece of refuse that he is. Perhaps he should be reminded that England no longer rules half the earth, it is no longer free to press-gang American sailors on the high seas (the cause of the war of 1812), and it is certainly not free to attempt to enforce its court judgments in the United States. Eady is a loser, in what is looking more and more like a country of losers, a country that has forgotten and discarded its honor and its heritage.
Jan 2, 2008 - 9:27 am Doc:I’d say this case would be better handled in a Federal venue.
Jan 2, 2008 - 10:59 am Pierre Legrand:Well this is just par for the course for our country. Exactly when do we start winning the war against Islam? Bush has done a pitiful job of actually winning the war where it counts, in the fields of philosophy. Witness the story of the Muslim taxi driver who murdered his two daughters….we are being inundated by people who have no idea of our system.
Honor Killings? Is Yaser Abdel Said a Muslim? Is the Pope Catholic? 2 Dead Daughters…call me suspicious!
Jan 2, 2008 - 11:02 am haroon rashid:hahaha, this is pitful journalism, what has this got to do with islamic shariah?
the booked is banned in the UK, not because the shiekh said it was against his religion or whatever, rather the UK libel laws are very strict and conservative. that is why all the U.S celebrities and stars come here to the united kingdom to sue for defamation.
once again i will say, it has nothing to do with shariah, and i’d also like to add that the journalism quality on a couple of articles iv read so far is shoddy, lazy and very (dare i say it) ignorant.
Jan 2, 2008 - 11:18 am USorThem:Ms Lappen,
I do not understand what it is that you would expect the NY legislature to do by way of passing a new law.
The NY legislature cannot prevent legal jihadist from suing in the UK.
They cannot create new jurisdictional rules over aliens that contradict Supreme Court guidelines. They cannot pass laws that allow NY courts to ignore foreign judgments if there is already a US treaty covering that and there is.
Also, IMHO, that internet tax, in the way you describe it, willsurely be struck down for much the same reasons that disallow NY to assert jurisdiction over bin Mahfouz.
Also, if you are suggesting that the UK applied sharia law, I disagree. If law was applied it was British law, not the sharia law definition of slander you correctly describe in the article.
I think Ms Ehrenfeld was taking a shot at a favorable ruling. She is no worse off now than before.
Jan 2, 2008 - 11:38 am Alyssa A. Lappen:Tristan Phillips: No, the ruling said nothing about shari’a, but I did not say it did. I wrote, “Intended or not, a narrow, technical New York Appeals Court decision on Thursday Dec. 20, 2007 produces that net effect.”
There’s a big difference. The Court did, however, leave open the door for the matter to be further considered in the New York and presumably federal legislatures.
Kevin: Alas, you are incorrect. The U.S. Second Circuit Court of Appeals ruled that the Ehrenfeld vs. Mahfouz case was “ripe” for hearing, and that any American author sued for libel in Britain could counter sue in U.S. federal courts. Before agreeing to hear the case itself, however, the Second Circuit asked the New York Court of Appeals to first consider the matter of local jurisdiction, within as wide a context as possible. The New York Court considered jurisdiction, of course, but not within the context that the Second Circuit specifically requested, I dare say. Rather, it sidestepped the First Amendment issue all together, which several attorneys with whom I’ve spoken regard as an error of law.
Robert Craig: Again, the NY Court of Appeals did not specifically allow shari’a into U.S. Courts–it did so by net effect.
Mr. Levinson: I would never have used your description of Judge Eady, but find it colorful and droll. Thank you for the chuckle.
Haroon Rashid: Ehrenfeld’s book is banned in the U.K. quite specifically because Judge Eady has a personal vendetta against James Woolsey, which he clearly stated in court, not because Mahfouz’ case has any merits.
Mahfouz’ case has never been tried on its merits–which is exactly Ehrenfeld’s point. If Mahfouz or any other Saudi terror financier wants to sue American authors or publishers for libel concerning a book published in the U.S., he should have sued in the U.S., not the U.K.
And yes, the matter has everything to do with shari’a, since resultant from all these judicial machinations, shari’a law concerning libel has effectively now been imposed: Mahfouz felt himself insulted, which under shari’a is libel. So Mahfouz sued Ehrenfeld for libel and won by default. By refusing to establish New York jurisdiction over Mahfouz despite the clear Constitutional and other grounds on which it could–and should–have done so, The New York Court of Appeals has effectively also therefore allowed shari’a interpretation of libel law to stand.
If you do not understand this point of shari’a law, I must suggest that you (not me) are lacking in education, sir.
USorThem: Yes, all Americans (not only Ehrenfeld), are much worse off now than we were before the NY Court of Appeals ruling. You are correct that Mahfouz may not attempt to collect his U.K. default judgment in the U.S. Nevertheless, so long as that threat exists–and it now continues to exist–all U.S. publishers with any international presence are far less likely to publish even the barest of facts concerning the terror funding enterprise of Mahfouz, as documented by the U.S. Treasury Department, Congressional hearings and so on. And that, quite frankly, is unacceptable. The First Amendment should precede archaic state jurisdictional interpretations, and many prior Supreme Court decisions indicate as much.
Jan 2, 2008 - 12:47 pm Alyssa A. Lappen:GreenConsciousness: Thanks for picking up my piece, and please forgive my initial failure to reply to you–it was an inadvertent oversight, not intentional.
I believe your legal interpretation is correct concerning state vs. federal jurisdictional matters. My understanding is that here, due to the local long-arm statute and New York’s interpretation thereof, Supreme Court rulings on Constitutional matter would and probably should apply, but in effect will not be applied except in the unlikely event that the Second Circuit were to send the case back to the New York Court of Appeals ordering it to explain its reasoning concerning the First Amendment’s application or otherwise broaden its approach OR the even less likely event that the New York Court of Appeals were to miraculously reverse its narrow, defeatist ruling.
I am not an attorney, alas. But from what I understand this very technical issue concerns the International Shoe Doctrine.
In short, at this juncture, legislation is probably the only way to resolve this serious infraction of New Yorkers’ First Amendment rights.
Jan 2, 2008 - 1:37 pm Kevin:If the Second Circuit said the state had to hear it first, then it is implied that, even with the NY state court ruling, this matter is not over in the courts. Sounds like the process needed to be followed in order for the federal court to make a ruling. The problem still lies in the UK. It’s rather loose standards of libel allow for abuse. Furthermore, is Eady’s word the final say in the matter in the UK?
Jan 2, 2008 - 11:10 pm tanstaafl:Would it be slanderous to note that the convoluted verbiage known as shari’a law elaborated (and re-elaborated)in the centuries since The Prophet (PBUH) is written as a highly self serving tool for purposes of maintaining “religious authority” ?
Or that a central tenet of Islamists in Denmark, in Great Britain, in Canada, in France and (apparently) in the United States is to keep up pressure for principles of shari’a to erode and (eventually) replace civil and constitutional law ?
Would it be slanderous to note that some “western” courts are bending over and spreading ‘em to accommodate these incursions ?
Jan 3, 2008 - 10:33 am Mike H.:tanstaafl it would not be slanderous at all. It would be direct and to the point. A well made point.
Jan 3, 2008 - 6:43 pm tanstaafl:So listen up all you multiculturalists and moral relativists in “the west” oozing compassion and phony inclusion in your courts for a mindset you don’t understand that would overwhelm your civil society as you know it…
Which came first, your softening “multiculti” brains or 911 ?
Because the two are inextricably linked.
Jan 5, 2008 - 7:33 am tanstaafl:Here are a couple of articles on Great Britain that point more specifically to the Muslim agenda the British (and American) courts are enabling through their wishywashyness.
http://timesonline.co.uk/tol/comment/faith/article2402973.ece
http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2008/01/06/nislam106.xml
Jan 6, 2008 - 12:22 pm Martin Meenagh:In England and Wales (there is no ‘British’ or UK libel law, Scotland and Northern Ireland have different laws)if you don’t turn up in court or defend yourself, civil judgment is usually entered against you in default. There is no written constitution in England. I think those three facts help illuminate this discussion a bit. Overall, though, one of the worrying things about English libel law is how it is being used by many elements in the world (including the Russians) to sue people from elsewhere if a publication has been made or created electronically in England. It’s interesting to see the debate in a country with genuine freedom of speech. Before any Americans get on their high horses though, I would remind you that the past few years have seen grossly one-sided extradition agreements in criminal matters and attempts to extend civil jurisdiction to things like corporate funding and terrorism that have encouraged US attorneys to effectively drag foreign citizens and companies into the American courts. I would also note the general climate in which rendition occurred, and suggest that a full scale righteous assault on English practice would just simply be dismissed as more of the same. Which is a pity!
Jan 7, 2008 - 3:38 pm