Progress Made on Free Speech Issues

In the immediate aftermath of the attacks of September 11, 2001, a host of new laws and regulations were passed—such as the Patriot Act—that cast a severe chill over First Amendment protections and the right to free speech. So six years after the attacks, during the 26th annual Banned Books Week, has the climate changed? “Things are better, but we still have a long way to go,” said Judy Platt, staff director for the Association of American Publishers' Freedom to Read committee. Platt said that one of the most encouraging developments has been the growing support among the American public about the need to roll back some restrictions on First Amendment protections.

Chris Finan, president of the American Booksellers Foundation for Free Expression, agreed, adding that among First Amendment advocates, “the period of panic has ended.” He said that before 2005 it was nearly impossible to get attention in Washington to reform provisions of the Patriot Act; now, with a Democratic Congress, more revisions are possible. This week, legislation to cut back the scope of National Security Letters—which First Amendment groups and others say invade the public's privacy—is expected to be introduced. And legislation that will put more teeth in the Freedom of Information Act also has a chance of passage, Finan said.

While both Platt and Finan are encouraged by the progress that has been made in restoring protections for a free press and for free speech, they know things can turn quickly. “The climate would change in a heartbeat if there is another terrorist attack,” Platt said.

It's not just new laws in the U.S. that have made it more difficult to publish and buy books on sensitive subjects since 9/11. The growing phenomenon of what is termed “libel tourism” has become more prevalent. In a case working its way through the courts now, Barbara Ehrenfeld, author of Funding Evil, published by Bonus Books, filed suit in a New York court seeking to have the court declare a libel judgment brought against her in the U.K. unenforceable in the U.S.

Last year, a U.K. court, where libel is much easier to prove, ruled in favor of Saudi businessman Khalid Bin Mahfouz, who claimed he was libeled in Funding Evil. Although a New York court originally threw out her complaint, citing lack of jurisdiction, she appealed to the U.S. Court of Appeals for the Second Circuit, which determined that the lower court needed to address the issue of whether, by writing letters to Ehrenfeld, Mahfouz's actions constituted doing business in New York under the state's long-arm statute. The New York Court of Appeals is preparing to hear arguments on that issue now.