Before the American Revolution, a plaintiff could successfully sue a writer for libel even when the offensive statement was demonstrably true. Then, starting with the famous Zenger case in 1735 and culminating with the New York Times vs. Sullivan ruling by the Supreme Court in 1964, American law cemented our tradition of open expression of ideas. In order to win a libel case in this country, a public figure must show not only that the critical statement is false but that the writer knew it to be false or wrote it with a reckless disregard for the truth.
That “actual malice” standard is a cornerstone of our 1st Amendment free-speech and free-press rights. But libel law has developed along a different path in England, where writers must prove that statements alleged to be libelous are true. That plaintiff-friendly approach has made London into a kind of libel headquarters for thin-skinned public figures who take umbrage at books they don’t like.
Consider the plight of Rachel Ehernfeld, author of “Funding Evil” -- a 2003 book about Saudi businessman and alleged terrorist financier Khalid bin Mahfouz. The book was distributed only in the U.S., but a few copies made their way to England, and that was enough for an English court to take jurisdiction. The Israeli-born writer had to choose between relocating from her New York home to London to defend herself, or defaulting. She chose the latter course, but risked the $160,000 judgment against her being enforced in a U.S. court. The New York Legislature responded by passing a law to prevent that from happening, and Illinois followed suit.
Authors in other states may back off from hard-hitting reporting for fear of being hounded by their subjects in a foreign court, especially when the purchase of a few American books by English readers over the Internet could open them to liability. That won’t happen in California, if lawmakers pass a bill introduced by state Sen. Ellen Corbett (D- San Leandro). SB 320 would assure writers that defamation judgments from other countries can’t be enforced here if the foreign court doesn’t provide the writers with at least as much freedom as guaranteed by the state and U.S. constitutions.
It’s a worthy bill and deserves to pass. Congress too should move forward on a more sweeping bill by Sens. Arlen Specter (R-Pa.) and Joe Lieberman (I-Conn.). S. 449 would protect writers nationwide and take an important additional step: It would permit counter-suits against plaintiffs who attempt to use foreign courts to suppress American expression. That may be the best protection for writers here -- until other nations update their laws to give greater respect to free speech.