“I did not live in England, I do not live in England, the book was not published there, so why not come and sue me in the United States?” Ms. Ehrenfeld asked. But Mr. Mahfouz knew he would have lost there. A British court found Ms. Ehrenfeld guilty and awarded Mr. Mahfouz £130,000 in damages and costs.T
For figures like Mr. Berezovsky and Mr. Mahfouz, Britain’s libel laws provided the perfect shield against scrutiny. The defendants, rather than being presumed innocent until proved guilty, had to demonstrate their innocence. The plaintiffs merely needed to show that the statements hurt their reputation; they did not need to prove that they were false.
The Ehrenfeld case caused outrage in the United States. The New York State Legislature took up Ms. Ehrenfeld’s cause, describing her conviction as “libel terrorism” and passing a law to “protect American authors and journalists from foreign lawsuits that infringe on their First Amendment rights.” In 2010, Congress passed the Speech Act, which made foreign libel rulings virtually unenforceable in American courts.
While American lawmakers once sought to protect their citizens from the clutches of British libel law, Mr. Trump now wants British-style laws in the United States.
After a long campaign by free-speech organizations, the British libel law was finally amended five years ago. The 2013 Defamation Act introduced a new defense of “honest opinion.” It insisted that a libel claimant had to show that he or she had suffered “serious harm” and required all claimants to demonstrate that Britain was the most appropriate place in which to bring the claim.
It was an improvement on the previous law, but still hugely restrictive. The defendant, for instance, if using a defense of “truth,” is still required to prove that his or her statement was true.
Shortly after the Defamation Act became law, Cambridge University Press declined to publish “Putin’s Kleptocracy,” a book by the American academic Karen Dawisha. The publisher wrote in a letter to the author that while there was “no reason to doubt the veracity of what you say,” Mr. Putin and others “would be motivated to sue and could afford to do so.” And even if the publisher were “successful in defending such a lawsuit, the disruption and expense would be more than we could afford.”
This is the sort of law Mr. Trump would like to impose on the United States. The American view of free speech is different from the British. The First Amendment frames the American debate and constrains those who would assault freedom of expression.
If Mr. Trump were to try to change libel laws, he would most likely have to face down opposition both from Congress and from the judiciary, all the way up to the Supreme Court. However much he may wish to possess British-style powers to silence his critics, Mr. Trump would find it difficult to achieve his aims.
And yet, the First Amendment is not as strong a shield as many assume it to be. Throughout its history, politicians and judges have sought to restrict its scope for political reasons. When, in 1917, Justice Oliver Wendell Holmes coined the famous line “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic,” he did so to insist that to distribute antiwar leaflets to conscripts was just like “falsely shouting fire in a theater.”
In 1951, the Supreme Court upheld the imprisoning of 11 United States Communist Party organizers, who were tried and convicted under the Smith Act, which prohibited conspiring to advocate or advocating the violent overthrow of the government. One of the two dissenting judges, Hugo Black, observed that courts should not be “suppressing freedom of speech” on the basis of “our own notions of … ‘reasonableness.’”
That is precisely what those who possess power — whether the state or influential individuals — have long sought to do. The United States does not need Britain’s libel laws. All of us need the First Amendment — to its fullest extent.
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