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WSJ: Foreign Courts Take Aim at Our Free Speech

Authors: Arlen Specter, and Joseph Lieberman
July 14, 2008

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Our Constitution is one of our greatest assets in the fight against terrorism. A free-flowing marketplace of ideas, protected by the First Amendment, enables the ideals of democracy to defeat the totalitarian vision of al Qaeda and other terrorist organizations.

That free marketplace faces a threat. Individuals with alleged connections to terrorist activity are filing libel suits and winning judgments in foreign courts against American researchers who publish on these matters. These suits intimidate and even silence writers and publishers.

Under American law, a libel plaintiff must prove that defamatory material is false. In England, the burden is reversed. Disputed statements are presumed to be false unless proven otherwise. And the loser in the case must pay the winner's legal fees.

Consequently, English courts have become a popular destination for libel suits against American authors. In 2003, U.S. scholar Rachel Ehrenfeld asserted in her book, "Funding Evil: How Terrorism Is Financed and How to Stop It," that Saudi banker Khalid Bin Mahfouz helped fund Osama bin Laden. The book was published in the U.S. by a U.S. company. But 23 copies were bought online by English residents, so English courts permitted the Saudi to file a libel suit there.

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