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
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.
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.