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LIBEL TOURISM 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

COMMERCIAL AND ADMINISTRATIVE LAW 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

FEBRUARY 12, 2009 

Serial No. 111–4 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

DANIEL MAFFEI, New York 

[Vacant] 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW

STEVE COHEN, Tennessee, Chairman 

WILLIAM D. DELAHUNT, Massachusetts 

MELVIN L. WATT, North Carolina 

BRAD SHERMAN, California 

DANIEL MAFFEI, New York 

ZOE LOFGREN, California 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

JOHN CONYERS, JR., Michigan 

TRENT FRANKS, Arizona 

JIM JORDAN, Ohio 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

HOWARD COBLE, North Carolina 

STEVE KING, Iowa 

MICHONE JOHNSON, Chief Counsel 

DANIEL FLORES, Minority Counsel 

(III) 

C O N T E N T S 

FEBRUARY 12, 2009 

Page 

OPENING STATEMENTS 

The Honorable Steve Cohen, a Representative in Congress from the State 

of Tennessee, and Chairman, Subcommittee on Commercial and Administrative Law ........................................................................................................... 1 

The Honorable Trent Franks, a Representative in Congress from the State 

of Arizona, and Ranking Member, Subcommittee on Commercial and Administrative Law .................................................................................................. 2 

WITNESSES 

Dr. Rachel Ehrenfeld, American Center for Democracy 

Oral Testimony ..................................................................................................... 11 

Prepared Statement ............................................................................................. 12 

Bruce D. Brown, Esq., Baker and Hostetler, LLP 

Oral Testimony ..................................................................................................... 15 

Prepared Statement ............................................................................................. 17 

Laura R. Handman, Esq., Davis Wright Tremaine, LLP 

Oral Testimony ..................................................................................................... 41 

Prepared Statement ............................................................................................. 44 

Ms. Linda J. Silberman, Professor, New York University School of Law 

Oral Testimony ..................................................................................................... 59 

Prepared Statement ............................................................................................. 61 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, Chairman, Committee on the 

Judiciary, and Member, Subcommittee on Commercial and Administrative 

Law ........................................................................................................................ 5 

Prepared Statement of the Honorable Peter King, a Representative in Congress from the State of New York ....................................................................... 6 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Material submitted by the Honorable Steve Cohen, a Representative in Congress from the State of Tennessee, and Chairman, Subcommittee on Commercial and Administrative Law: 

Prepared Statement of the World Press Freedom Committee ...................... 85 

Letter from John J. Walsh, Esq., Carter Ledyard and Milburn LLP .......... 89 

Prepared Statement of the Association of American Publishers .................. 93 

Prepared Statement of the American Civil Liberties Union (ACLU) ........... 99 

Prepared Statement of the American Jewish Congress ................................ 104 

Response to Post-Hearing Questions from Bruce D. Brown, Esq., Baker and 

Hostetler, LLP ...................................................................................................... 134 

Response to Post-Hearing Questions from Laura R. Handman, Esq., Davis 

Wright Tremaine, LLP ........................................................................................ 151 

Response to Post-Hearing Questions from Linda J. Silberman, Professor, New 

York University School of Law ........................................................................... 167 

Page

IV 

Material submitted by the Honorable Peter King, a Representative in Congress from the State of New York: 

Prepared Statement of the 9/11 Families for a Secure America .................. 172 

Letter from Patricia S. Schroeder, the Association of American Publishers, Inc. .................................................................................................... 173 

Wall Street Journal article entitled ‘‘Foreign Law and the First Amendment,’’ by Floyd Abrams ............................................................................... 174 

Letter from Caroline Fredrickson, Director, Washington Legislative Office, and Michael W. Macleod-Ball, Chief Legislative and Policy Counsel, the American Civil Liberties Union (ACLU) ....................................... 176 

Letter from Abraham H. Foxman, National Director, the Anti-Defamation 

League (ADL) ................................................................................................ 179 

Press Release from the American Jewish Congress ...................................... 180 

Letter from Lynne E. Bradley, Director, Government Relations, the 

American Library Association (ALA) .......................................................... 183 

Letter from Paul B. Jaskot, CAA President and Professor of Art and 

Art History, DePaul University, and Linda Downs, Executive Director, 

the College Art Association (CAA) ............................................................... 185 

Prepared Statement of various organizations ................................................ 187 

Article entitled ‘‘It Takes the Marketplace of Ideas to Win the War 

of Ideas,’’ by Andrew C. McCarthy .............................................................. 189 

New York Post article entitled ‘‘Rachel’s Law,’’ by Samuel A. Abady 

and Harvey Silverglate ................................................................................. 197 

New York Times article entitled ‘‘ ‘Libel Tourism’: When Freedom of 

Speech Takes a Holiday,’’ by Adam Cohen ................................................. 199 

Washington Times editorial ............................................................................. 201 

Prepared Statement of Paul Alan Levy, Public Citizen Litigation Group, 

Public Citizen ................................................................................................ 202 

Letter from Eric Rassbach, National Litigation Director, and L. Bennett 

Graham, Legislative and International Programs Officer, The Becket 

Fund for Religious Liberty ........................................................................... 215 

Prepared Statement of Yasmine Lablou ......................................................... 217 

Article entitled ‘‘British libel laws: cutting off crucial information,’’ by 

Richard N. Winfield ...................................................................................... 229 

Letter from John Whittingdale, OBE MP, Chairman, Culture, Media 

and Sport Committee, House of Commons ................................................. 232 

(1) 

LIBEL TOURISM 

THURSDAY, FEBRUARY 12, 2009 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON COMMERCIAL

AND ADMINISTRATIVE LAW, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 11 a.m., in room 

2141, Rayburn House Office Building, the Honorable Steve Cohen 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Cohen, Johnson, Franks, and Coble. 

Staff present: Matthew Wiener, Majority Counsel; Richard 

Hertling, Minority Counsel; and Adam Russell, Majority Professional Staff. 

Mr. COHEN. This hearing of the Committee on the Judiciary, 

Subcommittee on Commercial and Administrative Law, will now 

come to order. 

Without objection, the Chair will be authorized to declare a recess of the hearing, and I suspect I will, as we have a special program honoring the 16th President of the United States at about 

11:30. So, we are going to break at some point for that, and then 

come back and finish up. 

I will now recognize myself for a short statement. 

Last year, I introduced, and the House passed under suspension 

of the rules, H.R. 6146 to protect Americans’ first amendment 

rights against the threat posed by libel tourism. We return to that 

subject matter today. 

Libel tourism is the name given to the practice of end running 

the first amendment by suing American authors and publishers for 

defamation in the courts of certain foreign countries. These countries have laws that often disfavor speech critical of public figures, 

countries with often little or no connection to the allegedly defamatory statements that gave rise to the suits. 

England has become the favorite destination of libel tourists from 

around the world, especially wealthy libel tourists from countries 

whose own laws are hostile to free speech. London has been called 

the libel capital of the world. 

England’s otherwise admirable legal system attracts libel tourists 

for several reasons. Let me touch on the main one by way of introduction of the subject of today’s hearing. 

Our Constitution’s first amendment usually requires a defamation plaintiff to prove the falsity of a challenged statement. The 

first amendment is even more demanding when the defendant is a 

2 

public figure—The New York Times, et cetera. The plaintiff must 

then prove actual malice—prove that the defendant made the defamatory statement, in the words of the U.S. Supreme Court, with 

‘‘knowledge that it was false or with reckless disregard as to 

whether it was false or not.’’ 

Not so under the English defamation laws. Under English laws, 

presume the defendant is wrong. It places the burden of proving 

the truth of an allegedly defamatory statement onto the defendant. 

This draconian feature of English law—a long way from the 

Magna Carta—has drawn criticism, not only from defenders of free 

speech in the U.S., but also from the United Nations, and even 

members of the U.K.’s own Parliament. 

The threat of English and other foreign defamation suits by libel 

tourists has not diminished since we introduced H.R. 6146. If anything, it has grown, and is likely to grow stronger as the Internet 

continues to facilitate the free flow of information across national 

boundaries. 

Today’s hearing will give Members of the Subcommittee the opportunity to address four main issues. 

First, what features of some foreign legal systems—especially 

England’s—attract libel tourists? 

Second, how prevalent is libel tourism? Who are the libel tourists, and who are their American victims? 

Third, does libel tourism threaten the first amendment rights of 

Americans? And if it does, how and with what effect on public discourse about important matters of public concern? 

And finally, what should Congress do about libel tourism? 

As I mentioned in my earlier remarks, we passed this bill in the 

House. And the Senate never addressed it. 

To help us address these important and timely questions, we will 

hear from four distinguished witnesses. 

Our first witness will be Rachel Ehrenfeld, an author whose ordeal with libel tourism has helped bring this issue to the public’s 

attention. 

Then Laura Handman and Bruce Brown, two prominent Washington media lawyers, who will testify about matters concerning 

the threat of libel tourism. 

Finally, Professor Linda Silberman of the NYU School of Law— 

one of the country’s foremost experts on the enforcement of foreign 

legal judgments in our courts—will continue our discussion and 

hopefully suggest possible next steps. 

So, we have comity—not the Bob Hope variety, but the legal 

kind—and threats to the first amendment. 

Accordingly, I look forward to receiving today’s testimony. And I 

now recognize my colleague, Mr. Franks, the distinguished Ranking Member of the Subcommittee, for his opening remarks. 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

And Mr. Chairman, I sincerely appreciate you conducting this 

hearing. This is an important subject. 

Libel tourism is a specialized category of international forum 

shopping, which is the deliberate selection of a court that is known 

to rule favorably on a plaintiff’s position. A typical scenario involves an author who writes a critical news story about a social or 

legal problem. 

3 

As part of that story, the author exposes the illicit activity of an 

individual or group, possibly a person with an existing public profile—imagine that—seeking retribution against the author that the 

person or group files a defamation lawsuit in a forum known for 

its weak free speech laws. 

The plaintiff in this scenario is not really interested in obtaining 

a judgment to collect damages. Instead, the plaintiff’s main goal is 

to dissuade anyone from researching and publishing other negative 

accounts about his or her activities. 

One of the witnesses today, Rachel Ehrenfeld, has experienced 

this first hand. In her book, ‘‘Funding Evil,’’ Ms. Ehrenfeld indicts 

the activities of Saudi billionaire, Khalid bin Mahfouz, for allegedly 

erecting a bank system and fraudulent charitable groups that fund 

the activities of Osama bin Laden and other terrorists. 

Although the book was published in New York, 23 copies were 

sold in Great Britain through Amazon.com, and the first chapter 

was accessible online internationally. Bin Mahfouz sued Ms. 

Ehrenfeld in London for defamation. She did not appear to contest 

the court’s jurisdiction or the merits of the suit, and lost on summary judgment the following year. The British court awarded $225,000 in damages to bin Mahfouz, 

and ordered Ms. Ehrenfeld to apologize and destroy remaining copies of her book. 

Bin Mahfouz chose Great Britain to file a lawsuit because he 

knew British libel laws provide weak protection for free speech, relative to the United States. Since he could not win where the book 

was written and published, he manipulated the British legal system to serve his own purposes. 

Following the litigation in Federal and State court to declare the 

verdict unenforceable, the New York legislature passed the Libel 

Terrorism Protection Act in 2008. This statute provides that a foreign defamation judgment against a New Yorker will not be recognized unless the law applied in the foreign court provides as much 

protection for freedom of speech as the U.S. and the New York law. 

Interested parties, including Members of this Subcommittee, believe that other States and the Federal Government should follow 

New York’s lead. If libel tourism is an ongoing threat to free 

speech, a more comprehensive response is needed. 

Last year, the House passed H.R. 6146, Chairman Cohen’s libel 

tourism bill, which I co-sponsored. Under the Chairman’s bill, no 

U.S. or State court may recognize or enforce a foreign defamation 

judgment regarding a public figure or public controversy, unless 

the foreign judgment is consistent with the first amendment in our 

Constitution. This dovetails with U.S. law, which generally denies 

enforcement of foreign judgments that are counter to State public 

policy. 

Other legislators and observers prefer a different approach, as 

reflected in bills introduced by Representative King of New York 

and Senator Specter of Pennsylvania. The distinguishing feature of 

their legislation is the creation of a new Federal cause of action 

link to the foreign defamation suit. Once the foreign plaintiff files 

a defamation action against an American defendant in a foreign 

court, the American citizen may then sue in U.S. district court, if 

the foreign suit does not constitute defamation under U.S. law. 

4 

Injunctive relief, compensatory damages and attorneys’ fees are 

available as remedies. Treble damages may be given, if the foreign 

litigant intentionally engaged in a scheme to suppress first amendment rights by discouraging publishers, or similar financial supporters, not to endorse the work of journalists, academics or other 

commentators. 

Now, we all want to support a response that does the best job 

of frustrating libel tourists. But in our efforts to craft such a legislation, we must be careful not to overreach. 

For example, legislation that creates a new Federal cause of action must comport with the Constitution guarantee of due process. 

We should not write a bill that allows a U.S. court to acquire jurisdiction over a foreign citizen, based exclusively on his decision to 

file a defamation suit against an American citizen in a foreign 

court. There must be greater legal contacts between the foreign litigant and the United States. 

These are issues that we should explore today, Mr. Chairman. 

We have a panel of witnesses who are well versed on the subject 

of free speech procedure and conflict of laws. I am confident that 

they will add their understanding of the subject matter. 

And Mr. Chairman, if libel tourism spreads, free speech will inevitably be muted. Journalists and publishers will be less willing 

to report on important and controversial stories that inform the 

public and inspire government action where appropriate. 

Founding Father Thomas Paine once said, ‘‘Those who expect to 

reap the blessings of freedom must undergo the fatigues of supporting it.’’ And that is our charge today. We must continue to support free speech by combating libel tourism. 

So, before I conclude, Mr. Chairman, I want to mention a related 

issue. In many other countries, there is little distinction made between defamation of an individual and defamation of an ideology 

or religion. Other nations do not have the same high respect for 

their freedom of speech that we have in the United States, and it 

is important that we protect Americans from any defamation judgment that uses standards that do not comport with our own. 

For example, many foreign governments have justified restrictions on freedom of speech or expression through blasphemy and 

religious defamation laws. 

One prominent example is that of Egyptian blogger, Abdel Karim 

Suleiman Amir, who was sentenced to 4 years in prison for criticizing President Mubarak and offending the religion of Islam. 

Similarly, author Mark Steyn faced charges of offending Canadian Muslims for an article from his book, ‘‘America Alone,’’ that 

Maclean’s Magazine published last year. 

The movement for greater restrictions on freedom of speech or 

expression to protect religions rather the rights of individuals is 

one of the greatest threats to human freedom at this time, both 

internationally and in the United States, and one which shows how 

critically important it is that we look at the problem of libel tourism today. We must remain vigilant to protect Americans from any 

foreign defamation judgments. 

And thank you, Mr. Chairman, for you patience here, and I look 

forward to the witnesses’ testimony. 

5 

Mr. COHEN. I thank the gentleman for his statement. This is an 

ideal time and opportunity—and we had found it last year—for bipartisanship. So, unlike the vote we will probably take later today, 

we will have a good mix of blues and reds being all blues—or 

greens, or whatever. 

All Members shall have the opportunity to enter a statement, 

and opening statements will be included in the record. 

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, CHAIRMAN, COMMITTEE ON THE JUDICIARY, AND MEMBER, SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW

I am pleased that Chairman Cohen has scheduled this hearing on what has come 

to be called ‘‘libel tourism.’’ 

Let me just make three quick points: 

First, libel tourism threatens the First Amendment rights of Americans to speak 

on matters of public concern. 

News web sites and internet book sales that can send published materials around 

the world dramatically increase the danger of being sued in a foreign court over 

something published in the United States. 

We’ll hear about one such instance today in which the subject of the publication 

was financing terrorism. 

My hope is that this hearing will help lay the groundwork for a bipartisan bill. 

Second, I believe the best starting point for such a bill in this Congress is Chairman Cohen’s H.R. 6146 from the last Congress, which I was pleased to co-sponsor. 

That bill would impose a limited—but critical—requirement on those who ask a 

U.S. court to enforce a foreign defamation judgment arising from speech on a matter 

of public concern: to prove that the foreign judgment is consistent with the First 

Amendment. 

And it would do this without interfering with the legal systems of other countries. 

Third, I look forward to hearing insights from the legal experts at today’s hearing 

about the problem of libel tourism and what revisions, if any, should be made to 

H.R. 6146 before it is reintroduced. 

Thank you, Chairman Cohen. 

Mr. COHEN. And I think Mr. King had a statement, who was 

going to be a witness. And without objection, we will have that entered into the record. 

[The prepared statement of Mr. King follows:] 

6 

PREPARED STATEMENT OF THE HONORABLE PETER KING, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF NEW YORK


2-2.eps
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Mr. COHEN. Now, I am pleased to introduce the witnesses for today’s hearing. 

The first witness is Ds. Rachel Ehrenfeld. As mentioned in the 

opening statement, she has been a subject—or an object—of libel 

tourism. She is the director of the New York-based American Center for Democracy and the Center for the Study of Corruption and 

the Rule of Law; the author of ‘‘Funding Evil, How Terrorism is Financed and How to Stop It,’’ ‘‘Evil Money’’ and ‘‘Narcoterrorism.’’ 

Dr. Ehrenfeld is an authority on the shadowy movement of funds 

through international banking and governments to fund terrorism—assuming that monies are still traveling through banking. 

She explores the challenges of economic warfare and international terrorism to democracy and freedom, and how money 

laundering and political corruption facilitates terror financing and 

economic tourism. She has authored hundreds of articles about 

these issues. 

She has testified before congressional Committees, as well as the 

European and Canadian parliaments on similar jurisdiction, provided evidence to the British Parliament and consulted with government agencies, such as the Department of Defense, Homeland 

Security, Treasury, Justice and the CIA. She has also organized 

and participated in conferences the world over, and is a member 

of the board of directors of the Committee on the Present Danger. 

Our second witness will be Mr. Bruce Brown. Mr. Brown is a 

former newsroom assistant to David Broder at The Washington 

Post, and Federal court reporter for The Legal Times. He joined the 

firm of Baker and Hostetler in the summer of 1997. Since then, he 

has worked primarily in the areas of libel defense, prepublication 

review, news-gathering, copyright and civil rights. He regularly assists the Society of Professional Journalists on freedom of information matters. 

In the area of prepublication review, he has worked on biographies of Supreme Court Justice Thurgood Marshall, former New 

York Mayor Rudy Giuliani—and imagine—musician John Lennon. 

His published work has appeared in The Washington Post, The 

American Lawyer, The Economist, The Legal Times and The Wall 

Street Journal, and has been interviewed on NPR and Court TV. 

Ms. Laura Handman will be the third witness. She is the cochair of the Davis Wright Tremaine appellate practice, concentrates on media, intellectual property law, provides prepublication counseling and litigation services from complaint through trial 

and appeal to U.S. and foreign book, magazine, newspaper and 

electronic publishers and broadcasters. 

She has extensive experience in libel and privacy matters and 

brings recognized expertise to clients in array of copyright, trademark and first amendment issues. Also been on the America Radio 

Network. Her clients include the America Radio Network, Amazon.com, BBC, CNN, The Economist, FOX Television Stations, Inc., 

HarperCollins and the Random House. 

And our final witness is Ms. Linda Silberman. Professor Silberman joined NYU’s School of Law faculty in 1971. First woman to 

receive a full-time tenure track appointment to the School of Law 

and the first woman tenured professor, full professor, at NYU 

11 

School of Law when she received tenure in 1977. She was named 

the Martin Lipton Professor of Law in 2001. 

Professor Silberman has approached all the subjects she teaches 

as a blend of the practical and the academic. Whether it is civil 

procedure, conflict of laws, family law or international litigation, 

she brings to the classroom her private practice background, her 

experience as an appellate lawyer, as a professor in residence at 

the Justice Department’s Civil Division appellate staff, and her role 

as a special referee expert and consultant in a number of leading 

cases. 

She has participated in various State Department study groups, 

including the Hague Conference on choices of law applicable to 

international sales, the proposed Hague Convention on Jurisdiction 

and Judgments, and the Hague Convention on Choice of Court 

Agreements. 

So, as you can see, we have a very distinguished panel. We appreciate the willingness of all of you to participate in today’s hearing. 

Without objection, your written statements will be placed in the 

record, and we ask that you limit your oral remarks to 5 minutes. 

We have got a lighting system. And when it gets to yellow, you 

have a minute left. And then at red, Beulah pushes the buzzer, and 

you are off. 

After each witness has presented his or her testimony, Subcommittee Members will be allowed to ask questions, subject to the 

5-minute limit. 

TESTIMONY OF RACHEL EHRENFELD, 

AMERICAN CENTER FOR DEMOCRACY 

Ms. EHRENFELD. Thank you, Mr. Chairman and Members of the 

Committee for holding this hearing on libel tourism, which affects 

me personally. Special thanks to Mr. Cohen for inviting me. 

Sitting at my desk on January 23, 2004, I was interrupted by an 

e-mail from a law firm in London. This was no ordinary message. 

It was a letter threatening to sue me for libel in a British court 

for statements made in my book, ‘‘Funding Evil: How Terrorism Is 

Financed and How To Stop It,’’ about the Saudi billionaire, Khalid 

bin Mahfouz. 

The letter said that Mahfouz denied the allegations in my book 

that he funded al Qaeda and other Muslim terrorists organizations. 

Mahfouz’s lawyers demanded my public apology or retraction, removing my book from circulation, legal fees and a donation to a 

charity of Mahfouz’s choice. This was followed by further messages, 

faxes, mail and legal papers served. 

I am a scholar dedicated to exposing the enemies of freedom in 

Western democracies through publications, in books and articles. 

The psychological, emotional and financial effects of the threat of 

this libel suit against me in London will stay with me as long as 

I live. 

I refused to recognize the English court’s jurisdiction over me. I 

did not believe that I should have to defend myself in a country 

where my book was not published or even marketed. 

Nevertheless, I was sued for libel in London, because 23 copies 

of ‘‘Funding Evil’’ found their way to Britain, mostly through the 

12 

Internet, which also carried the chapter of my book. In 2005, the 

British court granted Mahfouz a judgment by default, awarding 

him hundreds of dollars and other sanctions. 

Until the New York legislature passed the Libel Terrorism Protection Act last May, I spent many sleepless nights worried that 

Mahfouz will try to enforce the English judgment against me in 

New York. His deliberate non-enforcement left it hanging over my 

head like a sword of Damocles, which aggravated the chilling effects. 

Mahfouz also uses a dedicated Web site to advertise my judgment with more than 40 other names of those he threatened and 

sued in London. 

Mahfouz’s suit has never been tried on the merit. Yet, the British 

judgment affected my ability to publish. The threat he wields over 

me, and over others, chilled American publishers, especially those 

with assets overseas, from publishing books containing information 

on terror financiers. 

Mahfouz also chilled my ability to travel to the U.K., lest I be 

arrested to enforce the British judgment against me. I run the 

same risk in Europe and in most Commonwealth states, due to 

their reciprocal enforcement of judgments. 

The Free Speech Protection Act includes provisions to countersue 

and damages. These are essential to remove the chilling effect of 

foreign libel suits, because they will serve as a deterrent to people 

contemplating to sue American writers and publishers in England 

or other foreign jurisdictions. 

Do you think Mahfouz would have sued me had he known I could 

countersue him and ask for damages? And would not that be true 

for others who sue the Americans in London or elsewhere? 

Today is a special day to have this hearing. We all know the significance of the man whose birthday we celebrate today. Lincoln 

was, among other things, a wonderful writer, who held this Nation 

together with his words that he published, and which we revere to 

this day. 

Imagine if he was intimidated, threatened and chilled from publishing those words by threat of foreign libel lawsuits. It is therefore fitting and proper that this Committee held this hearing about 

freedom of expression on Lincoln’s birthday. 

I urge Congress to pass the Free Speech Protection Act, because 

it is fitting and proper that it should do so. 

[The prepared statement of Ms. Ehrenfeld follows:] 

PREPARED STATEMENT OF RACHEL EHRENFELD

Thank you, Mr. Chairman and members of the Committee, for holding this hearing, which touches me personally. My special thanks to Chairman Cohen for inviting me. In addition to my oral testimony, I submit my written statement for the 

record. 

We are confronted by libel tourism—a pernicious and growing phenomenon, especially after the 9/11 attacks on America—whereby wealthy and corrupt terror financiers exploit plaintiff-friendly foreign libel laws and expansive Internet jurisdiction to silence American authors and publishers. Foreign libel laws have become a 

potent weapon used by the forces of tyranny who seek to undermine our freedom. 

The Free Speech Protection Act can stop this. 

In New York Times v. Sullivan, the Supreme Court struck a critical balance between libel actions and a free press guaranteed by the First Amendment. The high 

court raised the bar for libel plaintiffs to insure our ‘‘profound national commitment 

to the principle that debate on public issues should be uninhibited, robust, and 

13 

wide-open.’’ Based on that principle, the court declared: ‘‘libel can claim no talismanic immunity from constitutional limitations.’’ 

Outside the United States, there are no such ‘‘constitutional limitations.’’ The 

House of Lords explicitly rejected the Sullivan standard. So did the Canadian Supreme Court. Although all forty-one-member states of the Council of Europe submit 

to the European Court of Human Rights, Article 10 of its charter also rejects the 

Sullivan standard. 

In many countries, journalists can be jailed for criminal libel; truth is often not 

a defense; high office holders enjoy extra protection against criticism; publications 

can be confiscated; newspapers and broadcast stations can be shuttered; and writers 

can be forced to publish adverse court orders, and repudiate as false what they 

know to be true. 

Congress must protect American writers and publishers to guarantee the ‘‘uninhibited, robust and wide-open’’ debate the First Amendment was designed to protect. Scholars like me seek Congress’s help to stop libel tourism from limiting our 

ability to write freely about important matters of public policy vital to our national 

security. 

I can attest that libel tourism is costly, financially and emotionally. I do not command an army—or control an industry—or have vast wealth—or hold political office. 

In other words, I do not possess any traditional sources of power in society. Instead, 

I write. I am a scholar dedicated to expose the enemies of freedom and Western democracy. I expend great time and effort tracking down information across the globe. 

My books and articles are based in large part on evidence presented to Congress, 

parliaments and courts. Like most responsible scholars, I publish only material that 

can be verified. My credibility and livelihood depend on it. 

In 1992, I published Narcoterrorism: How Governments Around the World Have 

Used the Drug Trade to Finance and Further Terrorist Activities, and first called attention to the intimate relationship between drug trafficking and terrorism. 

Terrorism is not cheap. To the contrary, it is a capital-intensive activity. It requires lots of cash for training, weapons, vehicles, salaries, cell phones, airline travel, food and lodging; etc. I showed how the drug trade, not just oil profits, fuels terrorist organizations. While policy makers were romanticizing the Palestine Liberation Organization as a group of so-called ‘‘freedom fighters,’’ I showed how the PLO 

filled its coffers with billions of dollars from heroin, hashish, airplane highjacking, 

extortion and illegal arms sales. Until my book, neither the American government 

nor international agencies for drug control publicly linked narcotics and terrorism. 

When asked why he robbed banks, Willy Sutton famously replied: ‘‘Because that’s 

where the money is.’’ I followed his lead and followed the money. This led to my 

second book, Evil Money: The Inside Story of Money Laundering and Corruption in 

Government, Banks and Business, in which I connected the dots between drug profits, money laundering, political corruption, Islamic banking and how illicit funds are 

used to undermine democracies. 

The Committee undoubtedly remembers BCCI, the Bank of Credit and Commerce 

International, the cash till for Hezbollah, the PLO, HAMAS, Abu Nidal and other 

terrorist organizations. BCCI’s chief operating officer was Saudi billionaire, Khalid 

bin Mahfouz, banker to the Saudi royal family and at that time, owner of the National Commercial Bank of Saudi Arabia. In 1992, Mahfouz paid $225 million to settle criminal charges against him in New York arising from his control of BCCI. 

In 2003, I published my third book, Funding Evil, How Terrorism is Financed and 

How to Stop It. In that book, I showed the true face of terrorism. It is not the stereotype of underprivileged Islamic youth yearning to be religious martyrs, but instead, 

an international network of corrupt dictators, drug kingpins, and villains like 

Mahfouz who transferred some $74 million to at least two front charities for terrorism: the International Islamic Relief Organization and his Muwafaq or ‘‘blessed 

relief’’ Foundation, which then gave the funds directly to al Qaeda, Hamas and 

other radical Muslim organizations. 

In response, Mahfouz sued me for libel. What happened to me did not occur in 

a dark backwater of totalitarian repression like Syria, Saudi Arabia, or North 

Korea, but in England. Mahfouz does not live there. I do not live there. My book 

was not published or marketed there. Nonetheless, the English court accepted jurisdiction because twenty-three copies of Funding Evil arrived in England via Internet 

purchases. 

English law does not distinguish between private persons and public figures. Allegedly, offensive statements are presumed defamatory and the libel defendant 

bears the burden to prove they are true. Official documents from non-English 

sources are typically inadmissible in court, and Arab dictatorships refuse to help 

Western writers and publishers prove allegations about terrorism. 

14 

Protection of opinion is limited and multiple suits are allowed for a single act of 

publication. Libel defendants have limited pre-trial discovery and no right to depose 

plaintiffs under oath, as in American courts. Thus, libel plaintiffs usually win, verdicts are substantial, and defendants must pay the plaintiff’s legal fees. It is no 

wonder then, the Times of London called London the ‘‘libel capital of the Western 

world.’’ 

Mahfouz’s threats conveyed by E-mails, faxes, and legal papers were unsettling, 

and on one occasion, I was warned to do as he demanded if I ‘‘knew what was good 

for me’’ because he has friends in high places who wield great influence in the U.S. 

I refused to recognize the English court’s jurisdiction because I should not have 

to defend myself abroad. The British court granted Mahfouz a default judgment and 

awarded him hundreds of thousands of dollars; required me to prevent copies of 

Funding Evil from reaching Britain; and ordered me to publish retractions drafted 

by his solicitors. 

Libel tourism by Mahfouz and others like him made me realize something more 

was at stake than my book and the particulars involving him. In response, I sued 

Mahfouz in New York to declare his English judgment violated my rights under the 

First Amendment. That litigation led the New York Legislature last May to enact 

New York’s version of the Free Speech Protection Act. Illinois followed suit last August. 

Until the new statute protected me—dubbed by the media as ‘‘Rachel’s Law’’— 

Mahfouz’s English judgment hung over my head like a sword of Damocles and kept 

me up at night. 

The United States has a tradition of almost automatic enforcement of foreign 

judgments under the doctrine of comity enshrined in the Uniform Foreign MoneyJudgments Recognition Act adopted by a majority of states. Although writers can 

assert a First Amendment defense to enforcement actions, few have the economic 

resources to do so. 

Hence, libel tourism forces them to engage in self-censorship. Mahfouz’s libel tourism in London led American publishers with assets abroad to cancel several books 

under contract or consideration. Those who once willingly courted my work now 

refuse to publish me. In nearly forty cases, Mahfouz obtained settlements against 

his victims, all with forced apologies, by the mere threat of libel litigation. His 

boasts about this on his website to effectively silence and intimidate his critics in 

the media and academia. 

Case law speaks of the ‘‘chilling effect’’ on free speech threatened by unrestrained 

libel actions. My case demonstrates the chilling effect is no mere abstraction. I cannot travel to the U.K., lest I be arrested to enforce Mahfouz’s extant judgment, and 

I run the same risk in Europe, due to the European Community’s reciprocal enforcement of member states’ judgments. Similar laws apply in most Commonwealth 

states, too. 

I close with the immortal words of Justice Brandeis in Whitney v. California: 

Those who won our independence believed that the final end of the state 

was to make men free to develop their facilities, and that in its government 

the deliberative forces should prevail over the arbitrary. . . . They believed 

that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth. . . . Believing in 

the power of reason as applied through public discussion, they eschewed silence coerced by law—the argument of force in its worst form. Recognizing 

the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed. 

A free press is vital not only to our lifestyles, but also, to our national security 

to protect writers like me who expose those who do us evil. New York and Illinois 

have enacted laws to protect their citizens from the scourge of libel tourism which 

threatens press freedom and scholars, writers and publishers everywhere. The federal Free Speech Protection Act insures all American citizens will enjoy such protection. Congress should pass it without delay. 

Mr. COHEN. Thank you very much for your statement. 

And I want to recognize a former Member, Congressperson Pat 

Schroeder who is here, and always honored to be in her presence. 

And I appreciate your brevity. It is something uncommon in this 

place. 

Mr. Brown? 

15 

TESTIMONY OF BRUCE D. BROWN, ESQ., 

BAKER AND HOSTETLER, LLP 

Mr. BROWN. Thank you. 

It is a pleasure to be here today, and I thank the Subcommittee 

for its interest in finding a way to counter a growing and, so far 

unresolved, problem: the threat of libel tourism to first amendment 

interests in the U.S. 

It is a favorite line of London libel lawyers when they travel to 

conferences in the U.S. to quip with a nod to the great Johnny 

Cash, that they have just come from a town named Sue. That I 

have heard that same joke in different cities, coming from different 

English libel lawyers, tells you something about how well entrenched libel tourism has become. 

Speaking at these events with English lawyers about the historical differences in the way the two countries balance free speech 

with reputational interests has always been intellectually interesting, for sure. These differences, in fact, used to be solely the 

stuff of academic conferences and law review articles. 

But today, the importance of the distinction is far from abstract 

or theoretical, because today there are stories such as the one you 

just heard from author Rachel Ehrenfeld. 

Two principal things have happened. First, British judges have 

been exceptionally generous to libel plaintiffs from all parts of the 

world, who seek to use U.K. courts to hear their claims despite a 

tenuous connection on their part, or on the part of the defendant, 

to England. 

Second, publication over the Internet means that online content 

published in the U.S. and intended primarily for an American audience can be viewed anywhere around the globe, giving the English 

courts the thinnest of jurisdictional hooks for libel cases, but one 

that they have seized. 

London, therefore, has become the destination for a new class of 

libel litigant, who circumvents the strong free speech protections in 

our courts, and sues instead—or threatens to sue—in the U.K., 

where the standards are much weaker. Fear of substantial libel 

judgments in the U.K. plainly has a distorting impact on what is 

published here at home, stifling free speech in the U.S. on many 

important subjects. And so, libel tourism was born. 

The problem was in many ways predictable, as the U.S. and the 

U.K. traditions became more entangled in the online world. But the 

remedy thus far has been elusive. I am thrilled to see this Subcommittee pursuing one in this Congress. 

The written testimony you have from the other panelists and 

from me explains the incentives for a plaintiff to be in a U.K. court, 

highlighting the specific ways in which U.S. law is more protective 

than U.K. law in the libel area. 

While Rachel Ehrenfeld’s story is well known, there are many 

others that are not, such as Humayun Mirza’s. I tell his full story 

in my written statement, but let me briefly point out a few details. 

Mr. Mirza is the son of the first president of Pakistan. He retired 

after 30 years at the World Bank and wrote a biography of his father, from his home in Bethesda. The University Press of America 

based in Lanham, Maryland, published it in 1999. 

16 

Mr. Mirza received a letter from the U.K. attorneys of his father’s second wife, threatening to sue him in London. Each statement Mr. Mirza had written about her was founded on first-hand 

observation, decades of conversations with family members and 

Pakistani leaders, as well as State Department files. 

The book would unquestionably have been protected under U.S. 

law, and it was hardly distributed in the U.K. But Mr. Mirza was 

intimidated into withdrawing it, nonetheless. 

In a U.K. court, he would have had the burden of proving the 

truth of the statements—a daunting task regarding incidents that 

in some cases had taken place a half a century earlier in Pakistan. 

In a U.S. court, the first amendment has shifted this burden, and 

it is the plaintiff who must prove falsity. 

Moreover, as the wife of a former head of state, Mrs. Mirza, in 

a U.S. court, would have been a public figure required to prove that 

the allegedly defamatory statements about her were published with 

actual malice, or clear and convincing evidence that Mr. Mirza was 

aware that the statements were false or made them with reckless 

disregard for the truth. 

English courts have no such protections. So there ultimately was 

no case called Mirza v. Mirza in the U.K., because Mr. Mirza and 

his publisher could not risk it. 

Countering the impact of libel tourism is not about second-guessing the British people for striking a different balance between free 

speech and reputation than we have. It is about making sure that 

foreign jurisdictions do not dictate to us how we should strike this 

balance for ourselves. 

I first met Laura Handman just over 10 years ago when she 

wrote a very important friend of court brief in the Matusevitch 

case, which I am sure we will hear about. I covered the case for 

Legal Times, and quoted the Wilmer Cutler lawyer who was representing Mr. Matusevitch pro bono. 

What he told me then could be said today about the whole libel 

tourism debate. ‘‘This case is not about exporting American law. It 

is about importing British law.’’ 

And as the U.S. Supreme Court said, that is one of the reasons 

we fought a revolution. 

Thank you. 

[The prepared statement of Mr. Brown follows:] 

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PREPARED STATEMENT OF BRUCE D. BROWN


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Mr. COHEN. Thank you, Mr. Brown. 

Ms. Handman? 

And we are going to do what we probably should do, which is to 

respect your time and our Committee schedule, and pass on 

recessing for the Lincoln event. I think he will understand. 

Ms. Handman? 

TESTIMONY OF LAURA R. HANDMAN, ESQ., 

DAVIS WRIGHT TREMAINE, LLP 

Ms. HANDMAN. Thank you. And I hope I do him justice. 

Thank you so much, Chairman Cohen and Ranking Member 

Franks and the other Members of the Committee, for inviting me 

to speak about an issue that has been a passion of mine for nearly 

20 years. 

I applaud the heroic determination of Rachel Ehrenfeld and the 

efforts of this Committee to address the growing problem of libel 

tourism. My support is coupled with the greatest respect for the 

international comity concerns that Professor Silberman will undoubtedly raise. And I have the greatest respect for the British 

common law, which is the very foundation and genius of our legal 

system. 

But I have had the dubious honor of being introduced by my 

British counterparts to English judges as the American lawyer who 

got, quote, our law, British libel law, declared repugnant. I garnered that reputation, because I was counsel in the only two decisions so far where American courts have refused to enforce British 

libel judgments. 

And I would like to take a moment to explain the Bachchan case, 

because its facts really highlight the differences. 

In 1991, I was asked by the late Gopal Raju whether I would 

represent India Abroad, a newspaper and wire service based in 

Manhattan, which served an audience of Indians living primarily 

in the U.S. He had just been hit with a judgment from a London 

court in a libel action brought by Ajitabh Bachchan, a member of 

one of India’s most prominent families. 

To give you a sense of just how big a deal this family was, if you 

have seen the film ‘‘Slumdog Millionaire,’’ you will remember when 

the Bollywood star comes via helicopter to the slums and Jamal, 

locked in the latrine by his brother, dives into the hole in the floor 

so he can escape and get the star’s autograph. 

That star, Amitabh Bachchan, was the brother of the plaintiff in 

this case. Both Bachchan brothers were intimates of Rajiv Gandhi, 

then India’s prime minister. 

The story in India Abroad reported that the leading Swedish 

daily newspaper, Dagens Nyheter, had reported a new development 

in the widely publicized scandal involving alleged kickbacks by a 

Swedish munitions company to obtain Indian government contracts. 

India Abroad—should I wait for the—— 

Mr. COHEN. Do not worry about that. That is something that you 

learn about in your fifth term. So, you can go ahead. [Laughter.] 

Ms. HANDMAN. India Abroad reported that Dagens Nyheter had 

reported that a Swiss bank account belonging to the plaintiff had 

been frozen by Swiss authorities. Bachchan sued Dagens Nyheter 

42 

and India Abroad in London. And the Swedish paper immediately 

issued a retraction and settled. 

India Abroad reported the retraction, but did not settle. That left 

India Abroad with no defense, because its sole source had said it 

had made a mistake. 

In the U.K., India Abroad had the burden of proving that the 

claims were true. With Dagens Nyheter having claimed—admitted 

it was false, that was not possible. 

It did not matter that the plaintiff was a quintessential public 

figure, or the subject matter was quintessentially of public concern, 

involving a political scandal reaching up all the way to the prime 

minister facing re-election. It did not matter that all that India 

Abroad did was publish an accurate story about what a highly respected newspaper had reported. 

In the U.S., plaintiffs could not possibly establish that India 

Abroad published with fault—any kind of fault, negligence or actual malice—since reliance on a reporting of a reputable news organization is what all news organizations do, should do, and what 

small newspapers like India Abroad must do. 

In England, particularly under the laws at the time, a mistake 

is a mistake. News organizations are essentially guarantors of accuracy, and India Abroad had to pay. 

These are not minor differences between our two bodies of law. 

These go to the core protections, the breathing space ensured by 

New York Times v. Sullivan for political speech. 

So, when Bachchan came to New York, no U.S. court had refused 

to enforce a foreign libel judgment. But Justice Shirley Fingerhood 

refused to do so, because, she said, ‘‘England and the United States 

share many common law principles of law. Nevertheless, a significant difference between the jurisdictions lies in England’s lack of 

an equivalent to the first amendment of the United States Constitution.’’ 

We did win six-to-one in Maryland in the Matusevitch case that 

Bruce Brown mentioned. But since these cases, the pilgrimage of 

libel plaintiffs—be it Britney Spears, Russian oligarch Boris 

Berezovsky, or Sheikh Khalid bin Mahfouz—they have all flocked 

to London. 

Virtually every demand letter we receive these days from a U.S. 

lawyer is now accompanied by one from a British solicitor. Libel 

tourism has only grown, as the Internet permits even a newspaper 

like the Washington Times, which sold zero hard copies in the 

U.K., to be sued in London by an international businessman based 

on several dozen hits in the U.K. on an Internet Web site about 

a story about a Pentagon report. 

In part because of Bachchan and Matusevitch, the British courts 

have moved a step away from strict liability and a step closer to 

fault. But with increasing economic pressures, fewer and fewer 

media companies—much less individual authors like Ms. 

Ehrenfeld—can afford the risk of a more than likely judgment 

against them in a British courtroom. 

In the case of Forbes, that could be three judgments, since they 

are currently being sued simultaneously in Ireland, Northern Ireland and England for the same story, by the same lawyer. 

43 

That risk is further compounded by the English rule that makes 

the loser pay the winner’s legal fees, as well as their own. With 

British solicitors charging rates as high as 1,300 pounds per hour 

per lawyer, the result is predictable: U.S. media agreeing to outside 

settlements for cases that would have had no chance of success in 

the U.S.; and self-censoring, by either not writing about public figures known to be litigious, not engaging in investigative reporting; 

or not publishing in the U.K. at all. 

No one, not the audience in the U.S. or overseas, is well served 

by such a regime. 

I think that H.R. 6146 is an important step, making mandatory 

on the Federal level the Bachchan decision. I have suggested in my 

written testimony ways to enhance its remedial impact. 

Thank you very much. I look forward to your questions. 

[The prepared statement of Ms. Handman follows:] 

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PREPARED STATEMENT OF LAURA R. HANDMAN


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Mr. COHEN. Thank you. 

Professor Silberman, you are recognized. 

TESTIMONY OF LINDA J. SILBERMAN, PROFESSOR, 

NEW YORK UNIVERSITY SCHOOL OF LAW 

Ms. SILBERMAN. Thank you. 

I would first like to thank you, Chairman Cohen, and the Subcommittee for inviting me to testify on this subject about which I 

have been thinking and writing for decades, and that is the recognition and enforcement of foreign judgments more generally. 

And I am delighted to see that this topic is going to be addressed 

at the Federal level. 

You may have seen the ALI project that I did with my colleague, 

Professor Lowenfeld, which offers a somewhat more comprehensive 

proposal for a Federal statute governing the recognition and enforcement of judgments more broadly. The ALI project represents 

the position of the Institute, but my statements and my written 

testimony are those of myself only. 

In the short time that I have, I would like to just make two 

points: one, the need for Federal law on this subject; and secondly, 

some suggestions about the libel tourism bill. As I said, I think the 

subject of recognition and enforcement of foreign judgments should 

be a subject of national, Federal law. And libel tourism is only one 

aspect of that. 

The United States has no bilateral or multinational treaty dealing with the recognition or enforcement of foreign judgments. And 

unlike the full, faith and credit obligation, which is owed to sisterstate judgments, foreign country judgments are not subject to any 

constitutional or statutory requirement of recognition. 

Now, it is a curious history why the law on recognition of and 

enforcement of foreign country judgments has been treated as a 

matter of State law, especially when the only Supreme Court case 

on this subject says that it is a matter of relations between the 

United States and the foreign state. 

But because it has been left to State law, the same foreign judgment may be recognized and enforced in one State, and not in another. And the attempt at uniformity has been unsuccessful, because although they have used the Uniform Act, it has not been 

adopted by everyone. The adoptions, when they have occurred, are 

not uniform, and interpretations by State courts are not uniform. 

And I give in my written statement the example of the reciprocity 

requirement required by some States and not by others. 

So, a Federal law in this entire area is desirable. And I understand that this may be a first step. 

The second is on what to do about addressing the specific problem of libel tourism. 

H.R. 6146 is really a specific application of the principle adopted 

in every State of the United States, and indeed, principles adopted 

by almost every country, that a foreign country judgment may be 

refused recognition on grounds that the judgment is repugnant to 

the public policy of the enforcing State. And as we have heard, public policy has been used by States to refuse recognition and enforcement of a judgment. 

60 

H.R. 6146 would make clear that, as a national matter, first 

amendment concerns trump the more general policy of recognizing 

and enforcing foreign country judgments. And I think this should 

be done at the national, at Federal level. 

My main critique of H.R. 6146, if I may, is that it does not distinguish those cases where, from a private international law and conflict of laws perspective, it is appropriate for courts in the United 

States to refuse to recognize judgments, and when it is not. 

And the example that I used is the Matusevitch case, which has 

already been referred to, because there the libel judgment was obtained by one resident of England against another, both of whom 

were Russian emigre ́s. 

The libel was in England. The comments were published in an 

English newspaper. And the U.S. court, as we heard, refused to 

recognize the judgment, because of fundamental policy differences 

in U.S. and English law. 

But the question to be asked here is, when does a country have 

interests that are sufficiently implicated to warrant the application 

of its own policy? 

In the Matusevitch case, everything took place in England. And, 

yes, what is at stake are different English and American views 

about the appropriate balance between defamation protection and 

free speech. And in the Telnikoff case, it is England that has the 

relevant interest. 

There are, of course, other examples where a court in the United 

States would certainly be justified in concluding that its first 

amendment concerns should lead to non-recognition. My basic point 

only is that H.R. 6146 does not contain those nuances. 

I have also suggested that a comprehensive approach to recognition and enforcement of judgments would look at issues of jurisdiction, where the English courts are exercising exorbitant jurisdiction. We ought not to be enforcing those judgments. And I think 

that is a piece missing from the H.R. 6146 as presently drafted. 

As you might expect from my earlier comments, I am highly critical of the attempts made in the other bills to authorize jurisdiction 

and to create a cause of action for declaratory judgment and these 

more aggressive remedies. 

The jurisdictional provisions in those bills, I think, are inconsistent with due process. And I think it is much too aggressive an 

assertion of U.S. jurisdiction, even in situations where we would 

say the U.S. interests are compelling. 

One need only be reminded of the possibility that an anti-suit injunction by a court in the United States may be met with the response of an anti-anti-suit injunction elsewhere. And I see no reason to elevate the stakes. 

And looking, I see my time is over. I just would urge the Committee to look at this issue somewhat more comprehensively in a 

larger context about the recognition and enforcement of judgment. 

Thank you very much. 

[The prepared statement of Ms. Silberman follows:] 

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PREPARED STATEMENT OF LINDA J. SILBERMAN


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Mr. COHEN. Thank you, Dr. Silberman. 

And I will now recognize myself for some questions. 

You said there are some nuances in 6146 that you think should 

be changed, and it relates to this discretion and when to have an 

action arises to such that it should not be recognized here in our 

courts. 

Do you have language that you could recommend to us that you 

think would be definitive enough to give guidance to the courts? 

Ms. SILBERMAN. Well, I probably ought to think a little bit about 

that, but something like when U.S. interests are undermined, or 

U.S. interests are affected. 

I mean, we are a system that develops these issues by common 

law. And there, conflict of law approaches recognize situations in 

which there are interests. 

I think the failure to give any kind of nuance here, something 

like when U.S. interests are affected, would allow judges to find 

those situations and avoid, with all respect, the Matusevitch case, 

which I myself think is an inappropriate use of the public policy 

exception. I mean, we probably differ in this group, but that is my 

view. And I think the interests there of England, however much we 

disagree with them, are appropriate. 

Mr. COHEN. You mentioned the other bills that have been introduced on the subject. 

Do you know of any precedents for a cause of action in American 

law being created by something happening in a foreign jurisdiction, 

in law—— 

Ms. SILBERMAN. Well, I do not know of a—— 

Mr. COHEN.—in a court? 

Ms. SILBERMAN. I do not know of a bill that has moved that way. 

Certainly, things can happen in a foreign country that affect persons in the United States. And depending upon what those persons 

have done. I mean, the—— 

Mr. COHEN. But I do not mean what people have done as much 

as a foreign court’s actions. Have the actions in a foreign court ever 

been such that they have been the cause for action in the United 

States in a court system as a response? 

Ms. SILBERMAN. Well, of course we know the Yahoo! case in 

which the court ultimately dismisses that case. That is a case for 

a declaration—a declaration of non-recognition in precisely this situation—a declaration of non-enforcement, because of the judgment 

rendered by the French court against Yahoo! 

And I have to confess that I was—I had some consultations with 

Yahoo! in that situation. And indeed, I had suggested that an appropriate course might be a declaration of non-enforcement. And at 

the time I said, but I think there is serious question about whether 

or not you can get jurisdiction. 

At the time, I really did not have all of the facts. But the mere 

situation of bringing a suit because process is served on an American defendant is generally not thought to be a sufficient basis of 

jurisdiction. 

In the Yahoo! case we have a split decision in which the judges 

of the 9th Circuit on rehearing en banc, the majority of the judges 

thought that that would be enough. But a combination of judges 

who thought it would not enough, and concerns about ripeness— 

73 

that is, that the threat was not immediate, there was no suggestion 

that they were going to try and force the judgment—led to the dismissal of the case. 

I mean, it is unfortunate, I think, that that case did not get to 

the Supreme Court of the United States. And if it did, we might 

have some guidance on that subject. 

Mr. COHEN. And you mentioned some problems with H.R. 5814, 

and the Senate bill, 2977, which I guess—I think are identical. The 

problem I take from your testimony, just that it causes us—it is 

overreaching in its response? 

Ms. SILBERMAN. Well, it is two-fold. One, there is a provision on 

jurisdiction in that bill which I believe is unconstitutional. 

I think the notion that you can take jurisdiction, merely because 

someone who sued in a foreign court, and that same speech has 

been disseminated somewhere in the United States—I do not think 

is enough to get jurisdiction over that party who brought suit, used 

the foreign courts to bring suit, assuming that there was also 

speech in that country. They have not done anything, necessarily, 

in the United States—at least as our present jurisdictional principles State. 

The second thing I worry a great deal about is the notion of a 

clawback statute and treble damages. I mean, we have seen the attempted clawback from the other side, when the English passed a 

clawback statute many years ago in the antitrust area. 

Interestingly, that clawback statute has never been used by the 

English, and I think because they recognize that it is an aggressive 

attempt at regulating things that we may do in the United States 

with respect to our views about antitrust. Even if there are foreign 

defendants who act in the United States, the English do not think 

they should have treble damages. We do. 

The English passed a clawback statute, but it has never been 

used. And in our relationship with other countries, respect for our 

differences seems to me to be very important. 

It is one thing for us to say, we are not recognizing this judgment, because it affronts our public policy and affects U.S. interests. It seems to me it is perfectly right for us to do that. 

It is quite another thing, I think, to take these broad exercises, 

anti-suit injunctions, treble damages and clawback statutes. It 

shows no respect for a system that, although different than ours, 

is certainly a system that owes deference in situations where they 

have the strong interest. 

Mr. COHEN. Thank you, professor. 

And I now yield 5 minutes for questions to the Ranking Member, 

our friend, Mr. Franks. 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

And Dr. Ehrenfeld, at the risk of asking a simplistic question, 

looking at this legislation and recognizing your personal experience, is there some one provision, or one central concept that you 

would say is most important? And does this bill address that effectively? 

Ms. EHRENFELD. I think that, first of all, the principle of the law 

is good. However, having a law without any teeth, without any deterrence, is not good, because libel tourism will continue. 

74 

I am not a lawyer, so I will not argue about the legal aspects of 

it. But the fact that Mr. bin Mahfouz has a Web site where he advertises—and he is not the only one—all the legal judgments 

against Americans and others, have a very strong chilling effect. 

And I do not think that the first amendment is similar to other 

civil laws. The United States, as far as I know, is the only country 

with strong protections of free speech. There is no other country 

with similar protections. 

And I think that should make this law different than all other 

laws that deal with jurisdiction and reciprocity. That is my opinion 

about this. 

I know that he had probably—not probably, most likely—would 

have not sued, had he known that this will actually reach Congress. And that is not a deterrent yet, because he is continuing to 

sue. 

And apparently, Mr. Tweed in England, I assume, is the one in 

Ireland who is suing everybody as long as he can do that. 

I think that without teeth the law will do very little. I think it 

is important to have some measure of deterrent. 

Mr. FRANKS. Well, I hope you continue to be involved. And we 

are sure grateful for you being here today. 

Ms. EHRENFELD. Thank you. 

Mr. FRANKS. Professor Silberman, my last question is, you know, 

there is another subject related to libel tourism called religious defamation. 

For example, you know, you have authors who publish statements on religious themes under the mantle or provision of free 

speech, who are later prosecuted by foreign courts for blasphemy. 

And I am not suggesting this should be addressed in any way in 

this libel tourism bill, but there are some commonalities, there are 

some intrinsic parallels. 

And do you have any ideas how we might curtail the prevalence 

of the religious defamation cases, and what we should do about 

that, as well? 

Ms. SILBERMAN. Well, you are quite right that there. 

One could find a number of different issues, where the assertion 

of jurisdiction and foreign libel, defamation laws affect a much 

broader set of issues, like the one you mentioned. And in some 

sense, this approach would address some of those. 

You will see it in the intellectual property area, as well. And it 

is one of the reasons that, you know, I urged a broader bill—I 

mean, it may fall on deaf ears. You have enough to do. But that, 

if one went at the subject of the recognition and enforcement of foreign judgment at the Federal level—that is, a comprehensive statute—I think you could address many of these different things. 

I think you would get uniform Federal law on this subject. I 

think you could nuance it sufficiently, so that it would apply when 

U.S. interests are affected. And I think it would stop the sort of 

disuniformity that is getting done now with this patchwork of different bills. 

Presently, you have a uniform act. Now you have a revised uniform act. Now you have the New York statute. You have the Illinois statute. 

75 

This is a problem at the national level. It does involve—whether 

we differ or not—it does involve the relation between our country 

and other countries and other courts. And it should be the Congress that takes up and addresses this issue and decides what the 

appropriate realms of our interests are. 

Mr. FRANKS. Thank you, professor. 

And Mr. Chairman, thank you. I know that free speech is one of 

the great core foundations of this country. And I hope that we can 

be wise in our approach in how we protect it against whatever 

threats, whether they be foreign or otherwise. And I appreciate the 

panel for being here, and appreciate the Chairman for making this 

hearing possible. 

Mr. COHEN. Thank you, Mr. Franks. 

I now recognize—is there recognition sought by another member 

of the panel? 

Mr. Coble? You are recognized. The gentleman from North Carolina, where Duke was defeated by Carolina. 

Mr. COBLE. Thank you. [Laughter.] 

Well, now, Mr. Merritt might take umbrage with that, since he 

is an avid Duke fan. 

Thank you, Mr. Chairman. Good to have the panel with us. 

Mr. Chairman, I want to thank the Chair for having recognized 

Pat Schroeder. Ms. Schroeder served as a distinguished Member of 

this Committee and a distinguished Member of the House of Representatives. And it is good to have you with us, Pat. 

And thank you, Mr. Chairman, you and Mr. Price, for having 

called this hearing. 

Dr. Ehrenfeld, are there any other cases that have been brought 

to your attention where American writers have been sued in other 

countries for books or works that were written and published in the 

United States? 

Ms. EHRENFELD. Yes. Several authors that have been actually 

threatened with libel lawsuits by the same Saudi had contacted me 

when they received the letter, asking me, so, what do you do? How 

can you defend yourself? What to do? 

I also heard from others who not only were threatened to sue, 

and they had to apologize and retract—not only Americans, Canadians too. But also, people were sued in France by the same Saudi. 

He has a small industry. He keeps many lawyers busy and well 

paid. 

Yes, I have. And I know that it restricted their ability to publish 

other books. Especially, they were focused on national security 

matters, such as terrorism. 

Mr. COBLE. Well, I thank you. 

Ms. Handman, with regard to Representative King’s bill—that is 

5814 in the 110th Congress—what triggering mechanism or other 

factor would provide U.S. courts with personal jurisdiction over a 

plaintiff who initiates a defamation suit in a foreign court? 

Ms. HANDMAN. Well, an awful lot of the cases that we have been 

talking about, and that we talk about in our—is this on—that we 

talk about in our papers are actually U.S. citizens, who choose to 

go overseas to sue. So, there would clearly be jurisdiction over 

them, because they are U.S.-based. 

76 

I think of a lot of the celebrities in Hollywood, for example, or 

a number of businessmen, U.S. businessmen, who have chosen to 

sue overseas, because of the favorable laws in England. So, even 

applying the most traditional due process mechanisms, those kinds 

of claims would be covered. 

And then it reaches further out there. A lot of these international 

businessmen have dealings in the U.S. You know, the case, for example, involving the Washington Times right now, where they did 

not publish in the U.K. They only published here, though—no hard 

copies of the Washington Times in the U.K. 

But there were Internet hits—40 of them, or so—in the U.K. 

That was brought by an international businessman, who was doing 

business with the provisional government in Iraq, who had many 

ties to U.S. businessmen. And he would be subject to the very traditional mechanisms of jurisdiction and due process to the claims 

either in this bill, and with the suggestions I have made to expand 

the declaratory judgment remedy, and then the existing bill, H.R. 

6146, to include a declaratory judgment remedy. 

But staying within the jurisdictional limits of due process, I do 

agree with Professor Silberman, that that obviously is going to be 

the watchword. But it should be taken to the limits of due process. 

And it will be for the courts to decide whether someone who sues 

overseas, who files a lawsuit—who serves process here—has an expectation that he could be foreseeably brought to the U.S. to respond to a suit here. 

Mr. COBLE. Okay. I thank you for that. 

Mr. Brown, in wake of the potential lawsuits, how would you advise an American writer preparing to write a book or an article or 

work? What advice or counsel would you extend? 

Mr. BROWN. Get libel insurance, right? I mean, that is the—— 

Ms. EHRENFELD. You cannot—— 

Mr. BROWN. Yes. The first and foremost response to your question, I can remember hearing Rachel Ehrenfeld talk about her 

sleepless nights, wondering if the judgment against her would be 

enforced back in the U.S. 

I can recall, when I was representing Mr. Mirza, whose story I 

discussed in my written testimony, he spent an afternoon in his 

attic looking for his homeowner’s insurance policy, to see if by 

chance—although he could not remember—but just to see if by 

chance there was some rider or provision in the policy that would 

give him coverage in the case that there was a libel judgment or 

a libel action instituted against him. He, like Dr. Ehrenfeld, was 

terrified of the potential financial repercussions. 

And as Laura and I can both tell you and tell the Subcommittee, 

when we advise clients who are publishing on any matter of global 

concern today, whether it is international finance or global terrorism, or anything related to the world of celebrities or high-profile people, you go into it today assuming that you have got to keep 

your eye on U.S. law, as well as the law of the U.K., because of 

the growing problem of lawsuits in that jurisdiction. 

And I would just like to add one quick note on the personal jurisdiction issue. When we talked—you had asked the question about 

triggering mechanisms. 

77 

There is an analog here, I think, to the alien tort statute, that 

if Congress were to contemplate creating some kind of substantive 

cause of action for conduct that took place entirely overseas, the 

alien tort statute provides a perfect example—and it has been 

around for 200 years—of Congress creating subject matter jurisdiction for this kind of conduct. 

And, under the alien tort statute, there have been cases where 

foreigners have been served with papers while in the United 

States. That is one of the truest and surest ways to get personal 

jurisdiction over someone. 

And you may remember that Dr. Karadzic was personally served 

with an alien tort case when he had just finished dining out at a 

New York restaurant in the 1990’s. And that is a wonderful example of how U.S. law, when it has a bite like a substantive cause 

of action in the alien tort statute, can ensure that people who visit 

our country ultimately have to answer to our laws. 

Mr. COBLE. Thank you, sir. 

Mr. Chairman, I see the red light. Can I put a quick question to 

Professor Silberman? 

Mr. COHEN. Without objection. 

Mr. COBLE. I thank you for that. 

Professor Silberman, while we are all concerned about foreign 

suits that raise enormous concerns for American writers, can you 

tell us whether you are familiar with any foreign libel plaintiffs 

who were seeking to enforce their judgments here? 

Ms. SILBERMAN. I do not know of any offhand. I think maybe 

some of the other witnesses who do handle these cases are more 

likely to know than I. 

Mr. COBLE. Anyone else want to weigh in on that? 

Ms. HANDMAN. The two cases that I—— 

Mr. COBLE. Briefly, because the Chairman has given me an extra 

time. 

Ms. HANDMAN. Sure. The two cases I was involved in, in 

Bachchan and Matusevitch, they had both come here to the U.S. to 

enforce that judgment. 

So, those are—and then, those decisions came out, and that has 

had something of an in terrorem effect, I think, discouraging people 

from coming here. And that leaves Ms. Ehrenfeld in the untenable 

position she is in, because bin Mahfouz has not come here to enforce the decision. He just has it on his Web site as a cautionary 

note to all writers who want to write about him. 

Mr. COBLE. Oh, gotcha. Okay. Thank you all. 

Thank you, Mr. Chairman. 

Mr. COHEN. Thank you, sir. 

I am going to ask a few more questions, a second round, if anybody else wants to. 

But, Mr. Brown, have the English courts ever declined jurisdiction over American authors, under the theory that we have a different standard here, and they take that into consideration at all? 

Mr. BROWN. I am not familiar with those cases. There may be 

one in some of the written testimony, where there have been examples of English courts backing down on personal jurisdiction 

grounds. 

Laura, do you have—— 

78 

Ms. HANDMAN. Yes. I was an expert in one of them for Barron’s 

in London in the Osicom Chadha case, which I mention in my testimony. 

There, they did find jurisdiction over a California technology 

company and its president. But they exercised forum non conviens, 

and dismissed it based on forum non conviens, which is a discretionary basis, saying that the bulk of witnesses and testimony 

would be overseas. 

That has been more the exception than the rule in London, in my 

experience in these cases. 

Mr. COHEN. Professor Silberman, do you want to comment? 

Ms. SILBERMAN. There are some examples with respect to abstention, both in Canada and the United States. The only thing I wanted to say is that, the suggestion that I made about adding to the 

bill a provision that said we would not recognize a judgment when 

the foreign court exercised what we might characterize as exorbitant jurisdiction from the U.S. point of view. 

And that might well be situations where the publication is in the 

U.S., and it gets picked up, and there are a few hits on the Internet 

site. The Europeans, the English, they have jurisdiction in a very 

different way than we do. They will take jurisdiction in those kinds 

of cases. 

It is true that most of those countries—Australia and England, 

I know—will issue damages only for the amount of injury that occurs in their jurisdiction, unlike in the U.S. But nonetheless, that 

has the in terrorem effect that we were talking about. 

But a provision that said, when a foreign court exercises a jurisdiction—it exercises jurisdiction on a basis that is perceived as unreasonable in the United States, we would not recognize that judgment. 

I think that is, in fact, the law in the various States as well, but 

its interpretation differs. 

Mr. COHEN. Let us assume you sold a lot of books in England, 

and it was—still, they ruled against you. 

Isn’t it just as much an infringement on the American belief in 

your right to express your thoughts? And should not that judgment 

over there, even though there was a lot of damages there, still 

should not have—still be unenforceable here, because it is inhibiting our speech? 

Ms. SILBERMAN. Yes, if in fact if it inhibits our speech, yes. 

I am merely suggesting that there are really two prongs. I was 

not suggesting jurisdiction as a substitute for public policy. I was 

really suggesting, as the law is now, that there is a defense on 

grounds of public policy, and there is a defense on grounds of an 

unreasonable exercise of jurisdiction. 

Mr. COHEN. Dr. Ehrenfeld talked about teeth. If we permitted attorneys’ fees, would that not be—I mean, maybe they would be like, 

you know, tiny, baby teeth. But they would be teeth. 

Would that be something that would be okay? 

Ms. SILBERMAN. Attorneys’ fees—— 

Mr. COHEN. When you bring the action. You bring an action to— 

say they want to enforce their judgment, and you are bringing your 

action under our laws, and it is unenforceable. 

79 

And if you are successful in saying that—because they try to 

bring their action here to enforce their judgment. And they are 

thwarted because of our law, that then they have to pay attorneys’ 

fees to the prevailing party here. 

Ms. SILBERMAN. That is certainly teeth. And we certainly have 

given awards for prevailing parties in other situations when we 

deem that necessary. Yes. 

Mr. COHEN. Do you both agree, Ms. Handman and Mr. Brown? 

Something that would be acceptable? 

Ms. HANDMAN. Yes, your honor, that is indeed what I—— 

Mr. COHEN. I like that. But this is America, not England. 

[Laughter.] 

Ms. HANDMAN. Sorry. It is a habit. 

Mr. Chairman, yes, that is the amendment that we have suggested. And it would give teeth. And it is very similar to antiSLAPP statutes, which are now in 25 States, where there are attorneys’ fees when someone brings an action that burdens speech, 

which indeed, this would be a classic example of. 

And I would suggest that the attorneys’ fees should be able to 

reach any fees that were encountered in the British action as well, 

or the overseas action as well, any incurred there. That would put 

a little extra teeth in it, not just for defending the enforcement action, but also for whatever was incurred overseas. 

And in a way, it is only fitting, given that the British have that 

rule of fee shifting that is in place, and has had a huge impact on 

American suit over there. 

Mr. COHEN. Yes, that caught my attention when it was mentioned in the testimony. And it certainly would be a good—it would 

be teeth, and it would work with Dr. Ehrenfeld. And then that— 

you know, I did the SLAPP suit statute in Tennessee. 

Ms. HANDMAN. Oh, congratulations. 

Mr. COHEN. So, yes. Thank you. A strategic lawsuit against 

Pickford. And they did not really like that too much. 

Mr. Brown? 

Mr. BROWN. And maybe I could just add to that. In my written 

testimony, I discuss the different outcomes involving lawsuits 

brought against Cambridge University Press in the U.K., and Yale 

University Press in California. They are both involved in books 

dealing with the financing of global terrorism. 

In the Cambridge case, the books were destroyed. Cambridge 

capitulated and wrote a very self-serving, apologetic letter to Mr. 

bin Mahfouz, who was the plaintiff there, which Mr. bin Mahfouz 

has well publicized. 

In the Yale case—Yale was in California—they had access to the 

California anti-SLAPP statute, which they used, and they filed a 

motion to dismiss the case. And the plaintiff in that case ended up 

dismissing, even before the court had an opportunity to hear the 

anti-SLAPP motion. 

And as a colleague of mine pointed out to me just yesterday, the 

lawyer for the plaintiff in that case said, sounding more like a Harvard quarterback, that ‘‘Yale came at us hard.’’ And that is why 

they decided to drop their action in the face of the anti-SLAPP motion. 

So, it is quite effective, that fee-shifting provision there. 

80 

Mr. COHEN. Yes, Dr. Ehrenfeld, please? 

Ms. EHRENFELD. In the case of Cambridge University Press, interesting to note that the lawyers for bin Mahfouz were asked why 

did he sue only the publishers and not the American authors of the 

book. They were not sued. 

And he responded that, because Cambridge University is here in 

England, it is easy to sue. ‘‘It is difficult to sue American writers 

now.’’ This was following the New York legislation. 

So, it seems that was a deterrent. 

But in spite of what happened in Cambridge, and despite the big 

publicity, there are the authors—or one author, the living author 

of Cambridge—of ‘‘Alms for Jihad,’’ the book that Cambridge University pulled—cannot get a publisher here in the U.S., because 

they are afraid that it will reach England, and the publishers do 

not want to publish it. It is a very good book. It should be published. 

In addition, there are—Cambridge University Press actually defamed the authors, the American authors. But they cannot take action against it, because they do not want to get involved in expensive lawsuits. 

So, the more deterrence we have, the bigger the teeth, I think, 

the better it will be. 

Mr. COHEN. So, you like the attorneys’ fees idea. 

Ms. EHRENFELD. I do. 

Mr. COHEN. And what if we require kind of a role reversal, the 

attorneys to give a third of whatever they get back to their client? 

[Laughter.] 

Ms. EHRENFELD. You have to ask the attorneys here. [Laughter.] 

Mr. COHEN. That would lose the Bar’s support. We cannot do 

that. 

Has English defamation law at all changed and moved more toward our type of first amendment protections, Ms. Handman? 

Ms. HANDMAN. Yes, congressman, it has. And I take some small 

measure of credit for that. I do think the decisions in the U.S. have 

had that effect, and that is what I am told by my colleagues who 

practice there. 

But it is nowhere near where our law is. The burden of proving 

truth is still on the defendant. 

The Reynolds case, which is the case that has allowed some 

small measure of fault to be considered, so that if you make a mistake, but if you did all the things that the Reynolds court said— 

get comment, act fairly, a whole host of, a list of sort of what constitutes responsible journalism—then—and it is a matter of public 

concern—and they define that very narrowly, so that much of what 

in America would be deemed a matter of public concern would not 

fit within that definition—then there, even though you made a mistake, you may well be not liable. 

And that was the case in the Jameel case that was recently decided for Dow Jones. 

But in that case, even—what it is is a standard very different 

than what the actual malice standard is. Actual malice is basically 

deliberate falsehood. It is knowing it is false, or having serious 

doubts about the truth, and publishing it anyway. 

81 

It is basically a bad faith kind of defense, and it is subjective. It 

is what is in the reporter’s head. 

It is not a ‘‘what do good journalists do’’ standard, which is more 

like a negligence standard. That is a lower bar. 

But when there are public figures in the U.S., they have to prove 

that higher bar. And it is intentionally so, because that is the ability to make mistakes, basically, is what New York Times v. Sullivan enshrined. 

So, they are not anywhere near that. And that is what I hear 

from my colleagues over there. And that is my own perception. 

Even the lawyers who got that great decision in the Jameel case 

say, we are nowhere where you are, even on that false standard. 

And also on opinion, they have a sort of reasonableness test. We 

have, basically, if it is not a statement provable as true or false, 

it is opinion. And you cannot be sued for it. And then the judge 

does not get to say whether it is a good opinion or a bad opinion. 

That is a huge difference also. 

And there are many other smaller things like that, in terms of 

jurisdiction, in terms of statute of limitations, that make a huge 

difference as well. 

But those are the main things, and it is really not anywhere near 

where we are yet. 

Mr. COHEN. Thank you. 

Who wants to comment? 

Professor? 

Ms. SILBERMAN. If I could, just briefly. Of course, they are changing. I think we have seen that. The European Convention on 

Human Rights and the International Covenant of Civil and Political Rights are having an impact on the laws of many countries. 

And I think it is important to remember that when we talk about 

what I characterized as the nuances, how far we want to go, and 

who is affected, whether it is a foreign plaintiff, whether it is an 

English plaintiff who is injured in England. 

I mean, we could just take the mirror image. Imagine a place 

that had no protection for libel law, no defamation law whatsoever. 

And they publish here, and a U.S. citizen is injured and wants to 

sue for defamation. It meets with our standards, and so there 

would be a cause of action, but there would be no protection under 

the foreign law, and the United States issues a judgment. 

I mean, we would think that we had the relevant interest when 

there was a publication here, and there was a U.S. plaintiff. We 

would think we had every right to regulate that, regardless of what 

had been done in the other country. 

And so, I just suggest, as I often do in these kinds of cases, for 

us to stand in the shoes of the other country, and look at where 

the publication is, who is the resident. All of those things will be 

relevant in terms of the public policy. 

And I think it is important that these changes are occurring, and 

that there are not quite the same wide gaps of difference in the 

libel laws. 

Mr. BROWN. And I would just add to that. I think—briefly—that 

the fact that we are here today is something that is putting pressure on U.K. lawmakers. 

82 

I think you will see in the written testimony that there have 

been debates in Parliament quite recently about the phenomenon 

of libel tourism. And I think there are many M.P.s who are embarrassed by what they see happening in the U.K. courts. And I think 

the publicity we are giving to the issue today is another thing that 

will help perhaps reform U.K. libel law. 

But the Reynolds defense that Laura mentioned, it is only 10 

years old. We have had 45 years’ experience under New York Times 

v. Sullivan. 

But I would say that, as it has been described by some, as a test 

in which judges look back after publication and make some kind of 

evaluation about whether a publication was fair, fairness is not a 

concept in American libel law. 

And for those of us who practice in this area, one of the most famous articulations of that is Judge Leval in the famous Westmoreland case, who said that a publication can be relentlessly one-sided 

and unfair, and still be protected by the actual malice rule. And I 

think that, in all likelihood, the Reynolds defense will never catch 

up with where actual malice is. 

And one final point. I think just another twist in U.K. libel law 

is that they still routinely enjoin authors and publishers. And I 

think there is nothing more perverse than the fact that Dr. 

Ehrenfeld here, who made no intent at all to have her book published in the U.K., is now, I understand it, still under an injunction, right, and could be held in contempt of court, if a book that 

she never intended to be available to a U.K. audience, somehow is 

published there again, or is available there again. 

And I cannot imagine a more perverse miscarriage of justice than 

that. 

Mr. COHEN. Doctor? 

Ms. EHRENFELD. Regarding the Jameel case and the changes in 

the British law, the decision—Lord Hoffman said in that case—and 

I think the decision was that the measure is how responsible the 

reporters report. So, who will decide who is a responsible reporter? 

Should we leave it to the court? That is an important question. 

So, I do not think that that is a real movement toward a change, 

but it is not really change. 

Regarding other changes, I understand that the British Bar is 

now discussing changes in the structure of payment of defendants 

in libel lawsuits. That is, as far as I know, the changes that they 

are discussing, but not really about the libel laws themselves. 

Mr. COHEN. Thank you. I do not believe there are any further 

questions. 

And if not, I would like to thank all the witnesses for their attendance and their testimony. 

Without objection, Members will have 5 legislative days to submit any additional written questions, which we will forward to the 

witnesses and ask that you answer as promptly as you can. They 

will be made part of the record. 

The record will remain open for 5 legislative days for the submission of any other additional materials. Materials have been forwarded to us, and the request had been made to have them included in the record. And without objection, they will be made so. 

83 

A statement from the World Press Freedom Committee with appendices; a letter from John J. Walsh to me; a statement from the 

American Association of American Publishers; a statement from 

the American Jewish Congress; and a statement from the American Civil Liberties Union. 

Without objection, that is done. 

[The information referred is available in the Appendix.] 

Mr. COHEN. I thank everyone for their time and patience. This 

hearing of the Subcommittee on Commercial and Administrative 

Law is adjourned. 

[Whereupon, at 12:14 p.m., the Subcommittee was adjourned.] 

(85) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE WORLD PRESS FREEDOM COMMITTEE


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LETTER FROM JOHN J. WALSH, ESQ., CARTER LEDYARD AND MILBURN LLP 


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RESPONSE TO POST-HEARING QUESTIONS FROM BRUCE D. BROWN, ESQ., 

BAKER AND HOSTETLER, LLP 


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RESPONSE TO POST-HEARING QUESTIONS FROM LINDA J. SILBERMAN, PROFESSOR, 

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LETTER FROM PATRICIA S. SCHROEDER, 

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AMENDMENT,’’ BY FLOYD ABRAMS


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LETTER FROM CAROLINE FREDRICKSON, DIRECTOR, WASHINGTON LEGISLATIVE OFFICE, AND MICHAEL W. MACLEOD-BALL, CHIEF LEGISLATIVE AND POLICY COUNSEL, 

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LETTER FROM PAUL B. JASKOT, CAA PRESIDENT AND PROFESSOR OF ART AND ART

HISTORY, DEPAUL UNIVERSITY, AND LINDA DOWNS, EXECUTIVE DIRECTOR, THE

COLLEGE ART ASSOCIATION (CAA) 


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ARTICLE ENTITLED ‘‘IT TAKES THE MARKETPLACE OF IDEAS TO WIN THE WAR OF

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NEW YORK POST ARTICLE ENTITLED ‘‘RACHEL’S LAW,’’ 

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PREPARED STATEMENT OF PAUL ALAN LEVY, PUBLIC CITIZEN LITIGATION GROUP, 

PUBLIC CITIZEN


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LETTER FROM ERIC RASSBACH, NATIONAL LITIGATION DIRECTOR, AND L. BENNETT

GRAHAM, LEGISLATIVE AND INTERNATIONAL PROGRAMS OFFICER, THE BECKET

FUND FOR RELIGIOUS LIBERTY


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ARTICLE ENTITLED ‘‘BRITISH LIBEL LAWS: CUTTING OFF CRUCIAL INFORMATION,’’ 

BY RICHARD N. WINFIELD


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LETTER FROM JOHN WHITTINGDALE, OBE MP, CHAIRMAN, CULTURE, 

MEDIA AND SPORT COMMITTEE, HOUSE OF COMMONS


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ATTACHMENT 


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