This morning, I attended the opening panel of the conference I
mentioned earlier on the global efforts to use the legal
system to silence speech critical of Islam.
Much of the early discussion focused on the practice of "libel
tourism," a trend under which American authors are being sued in
foreign courts with less free speech protections. While such
lawsuits are typically unsuccessful, they have the ability to
create an environment in which publishers are afraid to print
works critical of Islam because they simply don't want to go
through the ordeal or expense of lawsuits.
Harvard Law School professor Alan Dershowitz called the threat
"the invisible killer of the legal system," noting that its
"silent nature" has a chilling effect on free speech before it
even takes place. He said it's an issue that "transcends
politics," and reminded the audience that he was a liberal.
James Taranto of the Wall Street Journal argued that the free
speech protections in the U.S. are strong enough that American
authors shouldn't have anything to fear.
Another panelist, John J. Walsh, a lawyer at Carter Ledyard &
Milburn, disagreed with the need for a law addressing libel
tourism, noting that none of the foreign judgments have proven
enforceable in the U.S. "If the Constitution works, why do we
need a statute?" he asked.
Dershowitz responded that the legislative approach didn't go far
enough, because even if certain judgments are unenforceable,
authors still can't visit foreign countries where they are facing
suits, and thus have to live like fugitives even though they
haven't done anything wrong. He said the U.S. had to make a
concerted effort to spread its view of free speech.
"We have to export our theory," he said. "We shouldn't be
satisfied simply that it isn't enforceable in the United States.
He suggested that the U.S. should add itself as a party to
lawsuits when authors are sued to defend the free speech
principle. He also talked about how he himself was indicted in
Italy for statements made in his Cambridge, Massachusetts office
criticizing the opinion of a judge who he said freed 5
terrorists. He was charged with defaming a member of the
judiciary, which carries as much as a 7-year prison sentence.
Instead of avoiding Italy, Dershowitz visited the country, and
said he plans to fight the charges in Italy and in the European
human rights courts to set a precedent.
But Frank Gaffney, who heads the Center for Security Policy, said
while he applauds what Dershowitz is attempting, foreign courts
are a "rigged game." On a broader level, he said too many people
aren't worried enough about where everything is headed because
things are okay for the moment – he compared it to somebody who
is falling from a 50 story building saying he's fine at the point
at which he's only fallen 30 stories.
Gaffney also highlighted efforts to establish Sharia-based
financing in the U.S. and President Obama's pledge to speak
"respectfully" of Islam as a forerunner to conforming our
nation's traditions to its stringent religious code.
But Dershowitz, while pleading ignorance on the nuances of Sharia
banking, suggested that allowing such accommodation was no
different than making certain legal accommodations for Jewish
Kosher laws.
Taranto also said he would disassociate himself with Gaffney's
comments on respecting Islam, and said he doesn't see Obama's
comments as a precursor to restrictions on speech.
UPDATE: Not surprisingly, liberal blogger
Matt Duss tries to dismiss the conference as a display of
neocon paranoia by highlighting some comments while ignoring what
other panelists had to say in response. As is clear from my
report above, the conference did not present a monolithic view of
this issue and there was a vibrant debate among the participants.
Gaffney, in particular, received a lot of pushback. This is
precisely why it's important to preserve Western values of free
speech, so such disagreements can be hashed out in an open forum,
Duss can write a snarky post about it, and I can set the record
straight.
