Does the United States Constitution protect the freedom of speech of American citizens, or does it not? In this era of globalization, the answer is becoming increasingly muddled. Thursday, an American citizen, Paul Williams, went on trial in Canada. He is charged with violating Canadian libel laws in charges he made in his book The Dunces of Doomsday about a jihad terror cell at McMaster University in Ontario. Likewise in Brazil, an American business writer, Joseph Sharkey, is on trial for what he wrote about Brazilian air-traffic controllers after he survived an airplane crash in Brazil.
Williams and Sharkey both live in the United States, which guarantees that its citizens’ freedom of speech not be infringed. Should Canadian and Brazilian libel laws apply to them? Williams has already had to pay enormous amounts of money for his defense, and Sharkey is likely to be found guilty and given a $500,000 fine. McMaster University wants a cool two million dollars from Williams.
Shouldn’t the United States government protect American citizens from such bullying by foreign powers?
If nothing is done, the problem is certain to get worse – for Williams and Sharkey are not the first American victims of the tactic that has come to be known as “libel tourism.” The late Saudi billionaire Khalid Salim bin Mahfouz sued Rachel Ehrenfeld, founder and director of the American Center for Democracy, several years ago. Bin Mahfouz was upset about Ehrenfeld’s book, Funding Evil, in which she wrote that he was involved in funding Hamas and al Qaeda – a charge for which there was abundant evidence from Western intelligence agencies. Nevertheless, taking advantage of British libel laws that place the burden of proof on the defendant, rather than the plaintiff, bin Mahfouz sued not in the United States, where Ehrenfeld lives and published her book, but in Britain, where neither he nor Ehrenfeld lived and where his entire case depended upon a handful of copies sold in that country mostly through special orders from Amazon.com, and the appearance of one chapter of the book on the Internet, where could have been read by British readers. A British court awarded bin Mahfouz $250,000, and Ehrenfeld had to devote the bulk of her time for years to fighting this judgment.
Now Senator Arlen Specter (D-PA) has introduced the Free Speech Protection Act of 2009, which would shelter American writers from libel judgments by courts in countries that do not value the freedom of speech the way America does. But this bill faces an uphill battle – it seems unlikely that Barack Obama will give it his support after he just last week had the United States co-sponsor an anti-free speech resolution at the United Nations. Approved by the U.N. Human Rights Council, the resolution, cosponsored by the U.S. and Egypt, calls on states to condemn and criminalize “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.”
“Hatred” and “incitement” are, of course, in the eye of the beholder – or more precisely, in the eye of those who make such determinations. The powerful can decide to silence the powerless by classifying their views as “hate speech.” The ability to dissent, publicly and without fear of imprisonment or other reprisal, is a cornerstone of any genuinely free society. Yet no less distinguished a personage than the President of the United States has now given his imprimatur to the quashing of such dissent.
But we still have the First Amendment, right? Legal expert Eugene Volokh explains that it isn’t that easy: “If the U.S. backs a resolution that urges the suppression of some speech, presumably we are taking the view that all countries – including the U.S. – should adhere to this resolution. If we are constitutionally barred from adhering to it by our domestic constitution, then we’re implicitly criticizing that constitution, and committing ourselves to do what we can to change it.”
Is that the change that Americans were hoping for when they voted for Barack Obama in such large numbers in 2008? Specter and the other Democrats who have introduced and support the Free Speech Protection Act should recognize how inconsistent it is with their own party leader’s actions as President of the United States, and call upon him to end all support for any legal measure anywhere that restricts free speech.
Our survival as a free people could depend upon it.