Radical Islamic groups in
the US are intimidating the media with the cost of defending defamation suits
in order to stifle criticism
Alan Dershowitz and
Elizabeth Samson
guardian.co.uk
Tuesday 9 February 2010 13.30 GMT
Recognising that British courts
have become a prime destination for "libel tourists", the House of
Lords has recently established
a government panel to look into the possibility of amending its laws to make it tougher
for foreigners to bring defamation suits in Britain. The
But even as
A recent
case is most instructive: the American
Civil Liberties Union sued the government-funded Tarek ibn Ziyad academy for
allegedly promoting Islam – a violation of church-state separation. TIZA
counter-sued for libel over the ACLU's statement that it is a "theocratic
school". On 9 December 2009 the court dismissed TIZA's counterclaim
because, as a public school, it is required to show that the ACLU's statement
was false and that it was also made with actual malice or a reckless disregard
for the truth, which it was unable to do.
How, in TIZA's estimation, would
a libel lawsuit against the ACLU – one of the strongest defenders of Muslim
civil liberties in the wake of 9/11 – have had any chance of succeeding? The
fact is that this case is part of a pattern of defamation lawsuits brought to
silence critics of controversial Islamic organisations due to increased
scrutiny post-9/11. The strategy, which has included actions such as libel
tourism in the
Though most defamation claims are
deemed baseless by US courts, the enormous cost a lawsuit imposes and the smear
of bigotry it achieves has stifled legitimate discussion of some suspect
behaviour. Litigation – and the threat of litigation – has prevented concerned
citizens from speaking freely and stopped the publication of important
information.
In 2003,
Hussam Ayloush, executive director of the southern
That is a
fraction of what a libel defence can cost. In 2005, the Islamic Society of Boston sued the Boston Herald and
nearly a dozen others for defamation. The ISB was building
The ISB lawsuit had even more
damaging consequences. Howie Carr, a columnist for the Boston Herald, said he
"know[s] the ISB lawsuit has had a chilling
effect on journalists in
Before 2001, there were five
documented defamation cases relating to radical Islamic groups. After 2001,
that number rose sharply. Though roughly 20 cases have been identified, the
extent of the problem is difficult to determine since these cases are typically
settled out of court. Often, the plaintiffs have substantial resources and the
defendants cannot afford the legal costs.
A 2004 survey by the American
Society of Journalists and Authors found that about 70% of freelance writers
earn less than $50,000 annually. It is not surprising then that some would
silence themselves, calculating that the personal cost of a lawsuit outweighs
the need to inform the public. It is also impossible to know how many threats
of a lawsuit have led to self-censorship or inappropriate retractions by
writers who fear that their writing, while protected as free speech, will land
them in court.
The New York Times, Wall Street
Journal, New York Daily News, and Boston Herald have all
been sued for libel for reporting about the plaintiffs' connections to radical
Islam. Large newspapers may be financially capable of putting up a defence, but
may not want the hassle or expense, even when the truth is on their side.
Perhaps most daunting is that the extent of the problem is hidden – one cannot
know what editors under pressure deem not suitable to publish.
It seems that the
• This article was amended on 9
and 10 February. The headline and standfirst were altered after the authors
objected that the original versions did not accurately represent the article's
intended meaning. We agreed. A reference to a lawsuit by the Council on
American-Islamic Relations (CAIR) was amended to clarify that the suit was
lodged by a CAIR regional official.