Welcome to ‘Lawfare’ – A New Type of
The Islamist movement has two wings – one violent and one lawful, which can
operate apart but often reinforce each other. While the violent arm attempts
to silence speech by burning cars when cartoons of Mohammed are published in
, the lawful arm is skillfully maneuvering within Western legal
systems, both here and abroad.
Islamists with financial means have launched a “legal
frivolous and malicious lawsuits with the aim of abolishing public discourse
critical of Islam and with the goal of establishing principles of Sharia law
(strict Islamic law dating back to the 9th Century) as the governing
political and legal authority in the West.
Islamist Lawfare is often predatory, filed without a serious expectation of
winning, and undertaken as a means to intimidate, demoralize and bankrupt
defendants. The lawsuits range in their claims from defamation to workplace
harassment and they have resulted in books being pulped and meritorious
articles going unpublished.
Forum shopping, whereby Plaintiffs bring actions in jurisdictions most
likely to rule in their favor, has enabled a wave of “libel tourism.” At the
time of her death in 2006, noted Italian author Orianna Fallaci was being
sued in , , and other jurisdictions by groups
dedicated to preventing the dissemination of her work.
Libel Tourism has also resulted in foreign judgments against American
authors mandating the regulation of their speech and behavior. The litany of
American anti-Islamist researchers, authors, activists, publishers,
congressman, newspapers, television news stations, think tanks, NGOs,
reporters, student journals and others targeted for censorship is long and
merits brief mentioning here.
One of the earliest cases in the US dates back to 1937, where in Birmington,
, an Arab Sheik sued the Birmington Post for libel over an article
entitled “Arabian Sheik Asks Friend Here to Buy him an American Girl for
Harem.” The Post reported that Sheik Fareed Iman, “who is 29 years old and
fears he may reach 30 before he obtains a chief-wife for his four-wife
harem, is ready to purchase a suitable girl from her parents. The lucky
girl”, the article continued, “will benefit from the traditional Arabian
protective treatment of women but she can’t be seen by those who are not
members of the household.”
The article read more like a parody of a personal ad in the dating section
of a magazine and listed a telephone number should anyone reading be
interested. Nevertheless, the Alabama court of appeals refused to dismiss
the suit and judged the article libelous per se, or defamatory on its face,
and remanded it for jury trial, where eventually the Plaintiff lost for his
failure to state a cause of action.
Within the last ten years, however, we have seen a steady increase in cases
pursued by Islamic organizations and Muslim individuals attempting to use
Western courts to stop the flow of certain information. They are achieving
a degree of success in because the judicial systems in ,
and elsewhere don’t afford their citizens, or American citizens for
that matter, the same free speech protections granted in America under the
. The cumulative effect of the suits abroad, and of the
suits here at home even if they are not successful, and the looming threat
of future suits is creating a detrimental chilling effect on dialogue
concerning important matters of public concern because, naturally, people
want to avoid costly litigation.
I want to mention briefly a few cases that have occurred here within the
last ten years against American anti-Islamist authors and activists. It is
imperative that our judicial system continue to enforce the authors’ and
activists’ rights to free speech and free assembly against all parties
attempting to stifle them here and abroad.
participants could post comments and talk to one another about issues
involving the and tenants of Islam. One Muslim visitor to the chat
room named Saad Noah considered posts by other visitors blasphemous and
defamatory against Islam. Noah then sued for libel, attempting a class
action on behalf of all Muslim chat room participants and claiming that
wrongfully refused to prevent participants from posting anti-Islamic
comments. The court properly dismissed the case against , for failure to
state a cause of action.
In 2003 the Council on American Islamic Relations (i.e., CAIR) sued U.S.
Congressman Cass Ballenger after an interview with the Congressman was
published in the wherein Ballenger exclaimed how living
in across the street from CAIR headquarters no longer appealed to
him because CAIR was, “a fundraising arm for ,” and that the
Congressman had reported such to the and the CIA. Fortunately, the
judge ruled that Ballenger’s statements were made in the scope of his public
duties and were therefore protected speech in the interest of public
The following year, CAIR sued Andrew Whitehead, an American activist and
blogger, for $1.3 million for maintaining the website Anti-CAIR.net. org, on
which Whitehead lists CAIR as an Islamist organization with ties to
terrorist groups. Ironically, after CAIR refused Whitehead’s discovery
requests, seemingly afraid of what internal documents the legal process it
had initiated would reveal, CAIR withdrew its claims against Whitehead, the
two parties came to a settlement – the terms of which have not been publicly
disclosed – and the case was dismissed by the court with prejudice.
Whitehead’s Anti-CAIR website, however, is still up and running along with
the articles that were at issue.
Last year, When Joe Kaufman, an American activist and chairman of Americans
Against Hate, traveled to to lead a peaceful ten-person protest
against the outside an event the group was
sponsoring at a Six Flags theme park, he was served with a temporary
restraining order and sued for defamation and harassment. What is
particularly troubling about Kaufman’s case is that the suit was filed
against him, not by ICNA, but by seven Dallas area plaintiffs who had never
previously been mentioned by Kaufman, nor had they been present at the theme
park. This suit currently is being litigated.
Another case that is ongoing is that of Bruce Tefft. Tefft is a former CIA
official and worked as a counter-terrorism consultant for the NYPD. After
sending out emails to a voluntary list of police officer recipients in which
he cut and pasted articles about terrorism – complemented with Tefft’s own
commentary – Tefft, along with the NYPD, was sued by a Muslim John Doe
Police Officer alleging workplace harassment.
Often the mere threat of suit is enough to intimidate publishers into
silence, regardless of the merit of their author’s works. In 2007, when
wealthy Saudi Arabian businessman, Khalid bin Mahfouz, threatened to sue
Cambridge University Press for publishing the book Alms for , by
American authors Robert Collins and J Millard Burr, Cambridge Press
immediately capitulated, offered a public apology to Mahfouz, took the book
out of print and ordered the destruction of all unsold copies and the
removal of the book from the shelves of libraries – a directive certain
libraries refused to follow.
Sometimes defendants targeted are able to take advantage of Anti-SLAPP
Anti-SLAPP statutes have been enacted in several, but not all, states and
are aimed at preventing such lawsuits designed to hinder legitimate public
In the book
front for terror financing. When Levitt, along with Yale Press who published
his book, were sued by KinderUSA, he instituted a counter-claim against the
plaintiff based on California’s Anti-SLAPP statute. Shortly afterwards,
KinderUSA dropped their lawsuit claiming it found the suit too costly to
Most disturbing, parties sued for reporting on U.S. government
investigations into terrorist activities, or for formally appealing
government authorities to conduct investigations, include
which, in 2001, reported on the US Government investigation of the Global
Relief Foundation; which, in 2002, reported on the
monitoring of the Saudi bank accounts; and ADL which, in 2002, called for
the investigation of a public school superintendent, Khadja Ghafur, based on
indications that schools under his supervision were teaching religion.
that Islamists will engage in future legal efforts along these lines.
Indeed, the Islamic Society of North America (ISNA) and the (MPAC) have both stated publicly that they are considering
filing defamation lawsuits against their critics. The Muslim World League
has called for the establishment of a commission to take legal action
against those who abuse Islam and its prophet Mohammed. During the recent
two-day summit in , taking legal action against those who defame Islam
was a key issue debated at length by Muslim leaders.
For its part, the
ambitious fundraising goal of $1 million, in part to “defend against
defamatory attacks on Muslims and Islam.” One of its staffers, Rabiah Ahmed,
has stated that lawsuits are increasingly an ‘instrument’ for it to use.”
Moreover, CAIR’s chairman, Parvez Ahmed, has stated that “People who make
statements connecting CAIR to terrorism should understand the legal
consequences of their attempted slander and defamation.”
This is not a Left or Right issue.
The Islamist Lawfare challenge presents a direct and real threat to our
constitutional rights and national security. Left unabated, this phenomenon
has the potential to seriously hinder public debate on the threat of radical
Islam. The United States was founded on the premise of freedom of worship,
but also on the principle that one should have the freedom to criticize
Should the voices of concerned Americans be intimidated into silence, a real
possibility exists that the criticism of radical Islam will be stifled, and
Sharia law will begin to creep into our system as we are seeing it do in the
financial markets with Sharia banking.
, who founded and heads the Middle East Forum, recognized the
seriousness of this threat and last spring established the Legal Project
(LP) to counter it. The LP has been working to recruit and establish a
network of attorneys who are willing to work as pro bono counsel for the
defendants in these cases; it has also embarked on fundraising efforts to
assist with the cost of litigation and is working to raise public awareness
of this phenomenon. Moreover, the LP is capable of positioning itself on the
offensive and has recently succeeded in causing The Muslim Weekly
publication, a UK-based lslamist magazine, to issue an apology and
retraction of an article in which one Tariq made false and
defamatory statements about Dr. Pipes.
Those parties who recklessly and wrongfully defame our counter-terrorism
researchers should beware.