Home inFocus Advice to the Next President (Fall 2008) Free Speech: Only for Islamists?

Free Speech: Only for Islamists?

Mark Dubowitz Fall 2008

Our next president assumes leadership in a world where critics of Islamism now face a dangerous legal offensive. At the United Nations, Muslim nations seek to criminalize legitimate criticism of Islamism as “Islamophobia.” In the U.K., Islamists are using British libel law to silence American authors and publishers who tie wealthy Saudis to terrorism. In Vancouver, Maclean’s magazine awaits a hate-speech verdict from a human-rights tribunal after publishing a chapter from columnist Mark Steyn’s best-selling book America Alone. These are just a few examples of a campaign to use judicial power, or “lawfare,” to silence Islamism’s critics.

Meanwhile, Islamists abuse these same free speech protections to spread their ideology. Television stations owned by terrorist groups al-Qaeda, Hezbollah, and Hamas, and supported by rogue regimes such as Iran and Syria, call for the murder of Americans, Europeans, and Israelis. Jihadist websites operate with relative impunity to recruit, fundraise, and spread propaganda.

The next administration faces a determined enemy adept at using our freedoms to their advantage, and at turning our laws against us.

Durban II and Islamophobia

At the United Nations, Muslim nations are working to make “Islamophobia” a prosecutable or actionable offense, even in countries with a strong free speech tradition. Their first victory came in March 2008 when the Organization of the Islamic Conference (OIC), the U.N.’s most powerful voting bloc, sponsored a resolution at the U.N. Human Rights Council urging a global ban on the public defamation of religion, with a focus on Islam. The measure passed easily. Indeed, the OIC’s 57 members usually push through their agenda with ease.

Using the U.N. as a vehicle, the OIC is now expected to advance its agenda at the second Durban Conference, scheduled for April 2009 in Geneva. The first Durban meeting, the 2001 U.N. World Conference Against Racism, was an unmitigated hate-fest against Jews, America, and Israel, complete with vile rhetoric and Stürmer-like caricatures of Jews on display.

During recent Durban II preparatory meetings in April and May, OIC members from Iran to Indonesia all insisted that freedom of expression enables Islamophobia. Pakistan’s U.N. representative, Marghoob Saleem Butt, requested that the Durban process “devise normative standards that provide adequate guarantees” against the intolerance of Muslims promoted by these freedoms. In short, the OIC seeks to pass legislation restricting basic freedoms of speech to prevent “Islamophobia.”

Discrimination against Islam or any other religion is of course reprehensible. But “Islamophobia,” as defined by Durban II organizers, precludes legitimate criticism. As such, editorials criticizing Islamic radicalism, or speaking out against Muslim terrorists, or publishing cartoons of the prophet Muhammad, would be considered criminal offenses.

Human rights advocates have been voicing their concerns about Durban II, but have had little success. Their concerns stem from the danger that if the OIC succeeds, numerous U.N. bodies can be expected to call countries to task if they fail to implement these recommendations. Moreover, the OIC could influence international law and even the national laws of individual countries. Indeed, the OIC seeks enactment by individual countries “of adequate legislation in line with… international standards.”

The next administration must not only refuse to attend Durban II, it must also convince America’s Western allies to boycott the conference. Canada has already announced that it will boycott the conference, but this is not enough. A full Western boycott, including European participation, would deal a blow to the credibility of the proceedings and deny Islamists the U.N. imprimatur they crave. Congress and the next president must also work together to block any attempt by courts and state legislatures to adopt definitions of what constitutes “Islamophobia” based on recommendations from Durban II.

Libel Tourism

While pushing for “Islamophobia” to be recognized under international and domestic laws, Islamists have also discovered that “libel tourism”—suing for libel from abroad—is an effective weapon of intimidation to silence critics of Islamism. This assault against free speech involves selecting venues for libel suits based on the court system’s likelihood to award judgments in the plaintiff’s favor. Numerous American writers are already fighting lawsuits and human rights complaints.

Since U.S. law requires the complainant to prove the falsehood of a claim, reckless disregard for the truth, and clear evidence of actual malice when filing a libel suit, lawyers generally warn foreign clients against pursuing legal cases against writers or publishers in U.S. courts. In British courts, however, the burden of proof is on the defendant to show that their claims were factual, making it easier for plaintiffs to win unfounded complaints.

One of the most abusive practitioners of “libel tourism” is Saudi businessman, Khalid bin Mahfouz. He uses Britain’s legal system to quash all scholarly research that alleges his role as a terrorist financier. Mahfouz has filed or threatened to file at least 30 lawsuits along similar lines in Britain.

In July 2007, Cambridge University Press was hit with a lawsuit filed in the U.K. by Mahfouz, for Alms for Jihad. The book mentions an investigation by German security services into Mahfouz, and the terrorist ties of an organization, the International Development Foundation, Mahfouz helped found. Mahfouz filed a libel lawsuit in a British court. After Cambridge capitulated, Mahfouz’s website trumpeted the apology by the publisher and the “unprecedented step of pulping all unsold copies of the book.”

Mahfouz also sued U.S. scholar Rachel Ehrenfeld for libel because of similar allegations in her book, Funding Evil: How Terrorism is Financed and How To Stop It. In the book, Ehrenfeld alleged that Mahfouz helped fund Usama Bin Laden. Twenty-three copies were bought online by U.K. residents giving Mahfouz jurisdiction to file a lawsuit in the U.K. The court ordered Ehrenfeld to pay $250,000 in damages, but when she countersued in the U.S., New York courts ruled that they lacked jurisdiction.

The Ehrenfeld case has sparked legislative action in the U.S. to protect American citizens. On May 1, 2008, the New York legislature passed “Rachel’s Law.” The law prevents New York courts from enforcing foreign libel judgments unless the foreign jurisdiction provides free speech protections that are equal to or better than that of the U.S. It also enables New York courts to declare a foreign libel judgment invalid.

Senators Arlen Specter (R-PA) and Joe Lieberman (I-CT) introduced a national version of Rachel’s Law, called the Free Speech Protection Act of 2008, while Representatives Pete King (R-NY), and Anthony Weiner (D- NY) introduced a similar House-side bill. In a Wall Street Journal editorial, the senators warned, “we are engaged in another great struggle —this time against Islamist terror—and again the enemies of freedom seek to silence free speech.”

As Andrew McCarthy at the Foundation for the Defense of Democracies observes, “In the battle of ideas, the challenge of libel tourism asks: Will we set free the vaunted marketplace of ideas or will we unilaterally disarm?”

The next president must work with Congress to pass the Free Speech Protection Act of 2008, and encourage individual states to pass their own versions. Doing so will protect American authors and commentators from the abuses of “libel tourism,” and prevent “unilateral disarmament.”

Jihadi TV

While Islamists attempt to use Western laws to intimidate their critics, they also use free speech protections to spread their virulent ideology. The terrorist groups Hezbollah, Hamas, and al-Qaeda, as well as the Iranian and Syrian regimes, exploit Western media freedoms to spread their propaganda, incite violence, fundraise, and recruit new members.

As one example, al-Manar (“the beacon,” in Arabic) is the television station of Hezbollah, owned and operated by Hezbollah, and financed by the Iranian regime. As former Treasury official Avi Jorisch observed, al-Manar is no mere propaganda tool; it is used by Hezbollah to broadcast its message of hatred, recruit suicide bombers, raise money for its terrorist activities, conduct pre-attack surveillance, incite attacks against Israeli soldiers and civilians, and glorify attacks against American soldiers in Iraq.

The indisputable ties between Hezbollah and al-Manar led to a March 2006 decision by the U.S. Treasury to designate al-Manar as a Specially Designated Global Terrorist (SDGT) entity. Treasury’s Undersecretary for Terrorism and Financial Intelligence Stuart Levey observed that al-Manar is an “entity maintained by a terrorist group” and therefore “as culpable as the terrorist group itself.”

Across the Atlantic, the European Union and the governments of France, Spain, and Holland also came to the conclusion that al-Manar violated European law. This led four European satellite providers to discontinue transmission of the station. Five other satellite providers based in Hong Kong, Australia, Barbados, Brazil, and Thailand also terminated their broadcasting of al-Manar. After being alerted to al-Manar’s terrorist ties, numerous multinational corporations discontinued almost $4 million in corporate advertising.

Today, al-Manar continues to broadcast in Lebanon through its terrestrial infrastructure, as well as throughout the Middle East, Europe, and North Africa, thanks to ARABSAT, a satellite company that is majority-owned by the Saudi government, and Nilesat, owned by the Egyptian government.

Recently, Hezbollah TV also began broadcasting in Southeast Asia, China, and Australia through the Indonesian satellite provider, Indosat, reaching millions of Muslims in this strategic region. Despite numerous entreaties from U.S. officials, the governments of Saudi Arabia, Egypt, and Indonesia refuse to end the broadcasts.

Hamas is another terrorist group that utilizes satellite television as an operational weapon. Through its al-Aqsa television station, it broadcasts anti-Semitic and anti-American propaganda throughout the Middle East, Europe, and North Africa. Hamas uses the station to recruit, fundraise, and even provide Qassam rocket targeting coordinates to fighters. Predictably, ARABSAT and Nilesat refuse to terminate transmission. The French satellite company, Eutelsat, has yet to pull the plug on Hamas’s television station, but appears to be making good faith efforts to get the French government to issue a permit to legally remove al-Aqsa television from its channel roster.

Our next president will need to cooperate with high-level European officials to encourage the governments of Egypt and Saudi Arabia to shut down the broadcasting of Hezbollah and Hamas television stations. More to the point, strong diplomatic pressure must be applied to these two Arab states that seek to be recognized as U.S. allies in the war on terror.

The president should also request that the Treasury place al-Aqsa TV on the SDGT list alongside al-Manar. This would send a strong signal to Egypt, Saudi Arabia, and our European allies that Washington is serious about combating terrorist media.

Jihad Online

While the U.S. military has fought jihadists in Afghanistan and Iraq by denying them freedom of movement, al-Qaeda and other terrorist groups undermine this effort by communicating via the Internet. Al-Qaeda and its supporters are adept at spreading their message online. They indoctrinate, recruit, and even train the next generation of terrorists. Researchers estimate that more than 5,000 Jihadist insurgent websites are currently radicalizing Muslim youth.

Once again, jihadists are exploiting freedom of speech to limit U.S. action. Western operators of Jihadist websites and forums are protected by freedom of speech. For example, U.S. citizen Samir Khan runs a popular website that is supportive of al-Qaeda out of Charlotte, North Carolina. His website hosts al-Qaeda videos depicting the death of American soldiers, and statements in support of jihad. Yet, Khan’s rights as an American guard him from prosecution.

Hezbollah and Hamas are also taking advantage of these same free speech protections by employing American Internet Service Providers (ISPs) to run their jihadist sites. As of July 2007, Hezbollah employed 53 ISPs for its 30 websites. Two-thirds of those ISPs were American companies. Hamas ran 18 websites using 36 ISPs—40 percent of these were American companies.

The next president must ensure that his administration encourages satellite providers and telecom companies providing the communications backbone for these ISPs to self-regulate websites acting in violation of their policies. Indeed, the U.S. government and allied NGOs can play a useful role in helping the telecommunications companies, who are few in number and who sell “wholesale” website services to hundreds of website retailers, to identify jihadist websites. Finally, the next president can request that the Treasury review and place jihadist websites on the list of SDGTs.

A Battle of Ideas

The war on terrorism is as much a battle of ideas as a battle of arms. The next president should recognize that Islamists are now using our freedoms against us. Accordingly, we must move to strengthen First Amendment protections of scholars and analysts seeking to expose the many links between Islamism and terrorism. At the same time, the next president must recognize that free speech cannot be a shield for terrorist satellite television stations and websites to incite to murder. Failing to act will only allow Islamists to silence their critics, and to incite their followers to further violence.

Mark Dubowitz is the executive director of the Foundation for the Defense of Democracies.