First Amendment

Ehrenfeld v. Mahfouz promises to be an interesting first amendment case if it gets past some technical jurisdictional issues which are awaiting decision¹.

Briefly, Rachel Ehrenfeld is the author of Funding Evil: How Terrorism is Financed -- and How to Stop It, which was published by Bonus Books in 2003 in the United States. (some copies were also sold over the internet to our cousins in Britain.)

Khalid Salim Bin Mahfouz is a billionaire Saudi Arabian citizen who was formerly the president and chief executive officer of The National Commercial Bank of Saudi Arabia.

In Funding Evil, Ehrenfeld alleged that Mahfouz, among others, financially supported terrorism. Mahfouz sued Ehrenfeld in England for libel on the basis of these allegations.

Mahfouz and many other public figures utilize the British legal system to obtain libel judgments because its laws require the author or publisher to prove the truth of the assertion.

Mahfouz could not obtain a libel judgment against Ehrenfeld in America’s legal system because it requires that a public figure prove the falsity of the assertion and that the falsity was made with reckless disregard for the truth - a very high standard and 180 degrees opposite from the British legal system.

The fact that our government has stated that Mahfouz funded terrorists, the basis for Ehrenfeld's statement in Funding Evil, means Mahfouz could not directly prevail in America’s legal system.

So, Mahfouz is trying to prevail indirectly by obtaining a judgment in Britain’s legal system then have the British judgment recognized under American laws. Ehrenfeld rightly says that violates her American first amendment constitutional speech rights.

In effect Ehrenfeld is arguing that if Mahfouz cannot obtain a libel judgment through the front door he can’t obtain it through the backdoor.

If Ehrenfeld get’s past the technical jurisdictional issues she stands a very good chance of prevailing and thereby preventing the circumvention of America's loadstar (lodestar) - The First Amendment of our Constitution.²

Web:

• UPDATED 10/07/2007 NYT, Libel Without Borders
• American Center for Democracy

-----notes-----

1. The technical jurisdictional issue relates to whether Mahfouz's efforts to have his British libel judgment recognized in America, plus a handful of correspondence contacts, is sufficient to confer personal jurisdiction over Mahfouz by American courts?

As an aside, it would be nice if some or all of Mahfouz's wire-transfers, which likely form the basis of our government's allegations that Mahfouz funded terrorists, where available to Ehrenfeld.

If personal jurisdiction is established Ehrenfeld's first discovery request will likely be for all of Mahfouz's money wire transfers. Remember all those transactions by Society for Worldwide Interbank Financial Telecommunication, (SWIFT) which our treasury department secretly monitors?

2. For me this is a not even a close question. While comity between nations should be encouraged, comity is based on the principle of similar or same substantive legal systems. It's also an economy of judicial resources question - if a similar or same legal system from another nation has already taken the time and spent the judicial resources to decide the issues it makes no sense for an American court to do it again.

However, where the differences between the legal systems are so great, as in the case of British libel law (also state secrets law), principles of comity, judicial respect and judicial economy must give way to ensuring our system of justice is not compromised.

Britain's libel laws are so different from America's that to recognize Mahfouz's British libel judgment in America would compromise Ehrenfeld's first amendment constitutional speech rights and our Constitution.

Let's hope the appellate court can get past the technical jurisdictional issues because this is a very interesting case with far reaching implications.

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