From the NY Post.
BULLIES BACK OFF
By JUDITH MILLER
October 10, 2007 -- NOTHING gets a journalist's attention like a subpoena. While authoritarian regimes silence critics by murdering or jailing them, journalists (and other critics) in the United States face gentler, but still effective, intimidation: libel lawsuits.
Over the last few years, radical Islamists have tried silencing reporters, scholars and citizens by suing them for defamation, often successfully. But recent legal cases in California, Massachusetts and Minnesota suggest that the tactic may finally be backfiring, at least in the United States, if not in Britain, where libel laws overwhelmingly favor plaintiffs. The American lawsuits' outcomes represent victories for the free expression and public participation that the First Amendment guarantees.
The latest victory came in August, when an Islamic charity, KinderUSA, and its board chairman, Laila Al-Marayati, dropped the libel suit they had filed in April in California state court against former Treasury Department official Matthew Levitt, the Washington Institute for Near East Policy (which now employs him) and Yale University Press.
In 2006, Yale published Levitt's book on Hamas, which Washington says supports terrorism. Levitt never mentioned Al-Marayati in his book, but he did assert that KinderUSA, founded to raise money for Palestinian children, had ties to terrorist groups.
Al-Marayati and KinderUSA charged that Levitt had made "false and damaging" charges that caused "irreparable harm to its reputation," and they sought at least $500,000 in damages, a public retraction and a halt to the book's distribution. But Levitt and his co-defendants stood by his claims.
In June, they filed a motion against the charity and its chairman, seeking to quash the libel suit and demanding that they pay all legal fees. They cited a California law that bans "SLAPP" - or "strategic litigation against public participation" - suits, which aim not at winning in court, but at intimidating into silence a group or a publication raising issues of public concern.
Less than six weeks later, Al-Marayati and KinderUSA dropped the suit. Todd Gallinger, who represented the plaintiffs, insisted that the charity had sued not to intimidate or silence Levitt, but rather to force him to correct charges that it still considers libelous.
"They were trying to suppress the charity's legitimate activities," he said. But Kin- derUSA underestimated the costs involved, he acknow- ledged, and the plaintiffs' anti-SLAPP motion was a factor in its decision to drop the suit.
Levitt's case isn't unique. Last May, the Islamic Society of Boston dropped its suit against the Boston Herald, a local Fox news channel, journalist Steven Emerson and 14 others. The society had accused the defendants of libel and of infringing its civil rights by claiming that it had given money to terrorist organizations, received funding from Saudi Arabia and bought land for a mosque below market value from the city of Boston.
Though Massachusetts's anti-SLAPP law does not cover media companies, 10 of the non-media defendants filed a motion to quash the society's suit. When a state judge rejected their motion, a legal discovery process commenced while the defendants appealed.
Bank records and other documents revealed that, contrary to its claims, the society had raised over $7 million from Saudi and other Middle Eastern sources and had funded two groups that the Bush administration has designated terrorist entities: the Holy Land Foundation for Relief and Development; and the Benevolence International Foundation. Records also showed that society directors had deleted all e-mails about the society's land purchase.
Finally, discovery revealed that the deputy director of the Boston city agency in charge of negotiating the land deal not only was a society member whom it had paid to raise money in the Middle East, but also secretly advised the group about obtaining the land cheaply - a clear conflict of interest. On May 29, soon after the state appellate court heard arguments on the anti-SLAPP appeal, the society abandoned the suit.
In Minnesota, a third lawsuit didn't involve journalists or SLAPP statutes, but it did threaten citizens' right to petition or warn the government on public safety issues. It also prompted Congress to protect people retroactively who report suspicious behavior.
The defendants were anonymous citizens whose complaints about what they considered suspicious behavior by six Muslim imams on a flight in late 2006 led US Airways to remove them from the plane. In a 2007 federal lawsuit claiming discrimination, the imams sued US Airways, the Minneapolis airport and several of the passengers who had complained.
But in August 2007, the "flying imams" dropped all claims against the passengers after Congress approved legislation to protect passengers from retaliatory lawsuits for reporting potentially terror-related activity. Under the measure, as in an anti-SLAPP law, if the plaintiffs can't prove that a passenger lied in his complaint to the government, they can be held responsible for all court and legal fees.
"The imams saw the handwriting on the wall," said Rep. Peter King (R-L.I.), who promoted the bill.
However intimidating and expensive defamation lawsuits remain in America, the challenge is far greater in Britain, where journalists must prove that their allegations are true.
Rachel Ehrenfeld, a New York-based terrorism researcher and the author of "Funding Evil," is among more than 30 writers and publishers whom Saudi billionaire Khaled bin Mahfouz sued for libel in England for accusing him of ties to terrorist groups, a charge he denies. But rather than give him the apology, retraction and $225,000 in fees that a British court ordered, Ehrenfeld fought back.
In 2004, she countersued bin Mahfouz in New York, asking the federal court here to declare the judgment against her unenforceable in America and contrary to the First Amendment protections that Americans enjoy.
But bin Mahfouz no longer needs to sue to intimidate his critics. After he merely threatened Cambridge University Press with a libel suit this spring, the prestigious publisher apologized on its Web site, paid his legal costs and unspecified damages and stopped distributing "Alms for Jihad," a book that outlines bin Mahfouz's alleged financial support for terrorism. Cambridge also asked libraries throughout the world to remove the book from their shelves.
On its Web site, Cambridge states that "under English libel laws, we simply did not have a defensible case." A court victory for Ehrenfeld, and more anti-SLAPP statutes - only some 20 states have enacted such laws - would help curb the pernicious "libel tourism" so inimical to the free flow of information on which an informed citizenry and effective counterterrorism depend.