Debating “Lawfare”

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.