A SLAPP Against Freedom

Judith Miller
City Journal | 10/11/2007
Nothing gets a journalist’s attention like a subpoena. While authoritarian regimes silence critics by murdering or jailing them, journalists (and other critics) in the United States face gentler, but still effective, intimidation: libel lawsuits Over the last few years, Islamists have tried silencing reporters, scholars, and citizens by suing them for defamation, often successfully. But recent legal cases in California, Massachusetts, and Minnesota suggest that the tactic may finally be backfiring, at least in the United States, if not in Britain, where libel laws overwhelmingly favor plaintiffs. The American lawsuits’ outcomes—poorly covered by the media—represent victories for the free expression and public participation that the First Amendment guarantees.
The latest victory came in August, when an Islamic charity, KinderUSA, and its board chairman, Laila Al-Marayati, dropped the libel suit they had filed in April in California state court against former Treasury Department official Matthew Levitt, the Washington Institute for Near East Policy (which now employs him), and Yale University Press. In 2006, Yale published Levitt’s book on Hamas, which Washington says supports terrorism. Levitt never mentioned Al-Marayati in his book, but he did assert that KinderUSA, founded to raise money for Palestinian children, had ties to terrorist groups.
Al-Marayati and KinderUSA charged that Levitt had made “false and damaging” charges that caused “irreparable harm to its reputation,” and they sought at least $500,000 in damages, a public retraction, and a halt to the book’s distribution. But Levitt and his codefendants stood by his claims. In June, they filed a motion against the charity and its chairman, seeking to quash the libel suit and demanding that the plaintiffs pay all legal fees. They cited a California law that bans “SLAPP”—or “strategic litigation against public participation”—suits, which aim not at winning in court, but at intimidating into silence a group or a publication raising issues of public concern. “California enacted anti-SLAPP legislation to get rid of inappropriate lawsuits like this one,” they wrote in a 15-page brief.
Less than six weeks later, Al-Marayati and KinderUSA dropped the suit. Todd Gallinger, who represented the plaintiffs, insisted that the charity had sued not to intimidate or silence Levitt, but rather to force him to correct charges that it still considers libelous. “They were trying to suppress the charity’s legitimate activities,” he said. But KinderUSA underestimated the costs involved, he acknowledged, and the defendants’ anti-SLAPP motion was a factor in its decision to drop the suit.
“Anti-SLAPP laws are a very powerful tool,” agreed Roger Myers, an attorney who specializes in using the law to defend journalists in libel claims. “There has been a fairly dramatic decline in the number of libel cases being filed here in California.”
Levitt’s case isn’t unique. Last May, the Islamic Society of Boston dropped its suit against the Boston Herald, a local Fox news channel, journalist Steven Emerson, and 14 others. The Society had accused the defendants of libel and of infringing its civil rights by claiming that it had funded terrorist organizations, received money from Saudi Arabia, and bought land for a mosque below market value from the City of Boston.
Though Massachusetts’s anti-SLAPP law does not cover media firms, ten of the non-media defendants filed a motion to quash the Society’s suit. When a state judge rejected the motion, a legal discovery process got under way while the defendants appealed. Bank records and other documents revealed that, contrary to its claims, the Society had raised over $7 million from Saudi and other Middle Eastern sources and had funded two groups that the Bush administration has designated terrorist entities: the Holy Land Foundation for Relief and Development and the Benevolence International Foundation. Records also showed that Society directors had deleted all e-mails about the Society’s land purchase. Finally, discovery revealed that the deputy director of the Boston city agency in charge of negotiating the land deal not only was a Society member whom it had paid to raise money in the Middle East, but also secretly advised the group about obtaining the land cheaply—a clear conflict of interest.
On May 29, soon after the state appellate court heard arguments on the anti-SLAPP appeal, the Society abandoned the suit. Though its lawyers did not respond to requests for comment and its website tried to put a good face on the surrender, Jeff Robbins, who represented several defendants in the complex lawsuit, expressed their belief that the Society had caved, fearing the prospect of paying what could have been millions of dollars in court and legal fees. “The anti-SLAPP motion clearly played a role,” said Robbins, who represented two clients for free because First Amendment issues were involved. Another factor, he said, was the Society’s fear that the court would order it to answer questions under oath and release information that it had tried to keep secret, such as the names of its donors. The case shows that while anti-SLAPP legislation makes it somewhat easier, cheaper, and faster for those accused of libel to fight back, “it doesn’t solve the problem entirely,” said Jeff Hermes, a lawyer for the Boston Herald. “Media companies are not covered by our state’s statute, and defendants in such cases still need to prepare a full defense.”
In Minnesota, a third lawsuit didn’t involve journalists or SLAPP statutes, but it did threaten citizens’ right to petition or warn the government on public safety issues. It also prompted Congress to protect people retroactively who report suspicious behavior. The defendants were anonymous citizens whose complaints about what they considered suspicious behavior by six Muslim imams on a flight in late 2006 led US Airways to remove the clerics from the plane. In a 2007 federal lawsuit claiming discrimination, the imams sued the airline, the Minneapolis airport, and several of the passengers who had complained.
But in August 2007, the “flying imams” dropped all claims against the passengers after Congress approved legislation to protect passengers from retaliatory lawsuits for reporting potentially terror-related activity. Under the measure, as in an anti-SLAPP law, if the plaintiffs cannot prove that a passenger lied in his complaint to the government, they can be held responsible for all court and legal fees. “The imams saw the handwriting on the wall,” said Representative Peter King, the New York Republican who promoted the bill. Gerry Nolting, a lawyer who represented a passenger, also without a fee, said that the imams might never have filed their suit if Minnesota had on its books an anti-SLAPP law like California’s.
However intimidating and expensive defamation lawsuits remain in the United States, the challenge is far greater in Britain, where journalists must prove that their allegations are true. Rachel Ehrenfeld, a New York–based terrorism researcher and the author of Funding Evil, is among more than 30 writers and publishers whom Saudi billionaire Khalid bin Mahfouz sued for libel in England for accusing him of ties to terrorist groups, a charge he denies. But rather than give him the apology, retraction, and $225,000 in fees that a British court ordered, Ehrenfeld, whose book was never even published in England, fought back. In 2004, she countersued bin Mahfouz in New York, asking the federal court here to declare the judgment against her unenforceable in America and contrary to the First Amendment protections that Americans enjoy.
In June, the Second Circuit Court of Appeals, overturning a lower court ruling, asked the state’s highest court to determine whether bin Mahfouz should be subject to New York jurisdiction. If it rules affirmatively, Ehrenfeld would be able to obtain considerable information about his finances in preparing for a trial. If he then failed to cooperate, he might have difficulty doing business in America.
Ehrenfeld’s effort comes none too soon, says Andrew McCarthy, a former federal prosecutor, for bin Mahfouz no longer needs to sue to intimidate his critics. After he merely threatened Cambridge University Press with a libel suit this spring, the prestigious publisher agreed to apologize on its website, pay his legal costs and unspecified damages, and stop distributing Alms for Jihad, a book written by J. Millard Burr, a former State Department analyst and relief coordinator, and Robert O. Collins, a former University of California history professor, which outlines bin Mahfouz’s alleged financial support for terrorism. Cambridge also asked libraries to remove the book from their shelves. On its website, Cambridge states that it took such steps because “under English libel laws, we simply did not have a defensible case.” A court victory for Rachel Ehrenfeld, and more anti-SLAPP statutes—only some 20 states have enacted such laws—would help curb the pernicious “libel tourism” so inimical to the free flow of information on which an informed citizenry and effective counterterrorism depend.

Judith Miller, a contributing editor of City Journal, is a Pulitzer Prize–winning journalist who writes about national security issues. She has written or coauthored four books, including Germs: Biological Weapons and America's Secret War.