Be Careful What You Sue For

Posted
Monday, June 11, 2007

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to the Traditional Enemies of Free
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The
Islamic Society of Boston loses its libel case, and its reputation

Be Careful What
You Sue For

By Floyd
Abrams

PURSUING a libel or slander suit has long been a dangerous enterprise. Oscar
Wilde sued the father of his young lover
Alfred Douglas for having referred to him as a “posing Sodomite” and wound up not only dropping his case but being tried, convicted and jailed for violating England’s repressive laws banning homosexual conduct.

Alger Hiss sued
Whittaker Chambers for slander for accusing
Hiss of being a member of the Communist Party with
Chambers, and of illegally passing secret government documents to him for transmission to the
Soviet Union. In the end, Hiss was jailed for perjury for having denied Chambers’s claims before a grand jury.

David
Irving comments:

I PRESUME that Abrams is Jewish, hence his obsession with the historic Lipstadt trial; I have long moved on from there. In one important legal aspect I did slip up in that Lipstadt case; when the defendants introduced
“racism” and “antisemitism” I should have pointed out that

1. Lipstadt herself had not made such
   claims in her book and
2. they had not been pleaded, and I
   should have asked the Judge to disallow
   this line of defence in the
   courtroom.

I was so overwhelmed (fighting a
40-strong team single handed) that I did not spot this. As said, I should have asked the Court to throw out this line of defence (which is not to say that Sir
Charles Gray, the Judge, would have necessarily been minded to indulge my objection). In interlocutory hearings before the main action, all my pre-emptive materials proving I am not
“anti-Semitic” or “racist” had been thrown out of my Discovery as irrelevant
to the issues

then pleaded, on the defendants’ application. At the time that ruling was perhaps right; but then, sensing that they were peculiarly weak on the
“Holocaust denier” and other allegations, they changed their defence a few days before the Trial. . .

SKUNK-FACT:
Professor Lipstadt’s lawyers paid her expert witnesses over half a million pounds, a million dollars, in initial fees.

Most also published books on the trial, some ,like Professor Robert Jan
Van Pelt’s being subsidized by Israeli organisations, despite having denied on oath that this was their intention. In addition — although there is no suggestion that the leader of the expert witnesses Professor Richard
“Skunky” Evans anticipated this at the time he drew up his neutral evidence —
Lipstadt’s co-defendant Penguin Books
Ltd., part of the billion-dollar Pearson
Group,

signed a one million pound book contract with him after the trial victory which his unbiased expert evidence had so obviously procured.

More recently, British historian David
Irving sued American scholar Deborah
Lipstadt in England for having characterized him as a Holocaust denier and was ultimately so discredited in court that an English judge not only determined that he was indeed a Holocaust denier but an “antisemite” and “racist” as well.

On May 29 of this year [2007], the potential vulnerability of a plaintiff that misuses the courts to sue for libel once again surfaced when the Islamic Society of Boston abandoned a libel action it had commenced against a number of
Boston residents, a Boston newspaper and television station, and Steven Emerson, a recognized expert on terrorism and, in particular, extremist Islamic groups. In all, 17 defendants were named.

Those accused had publicly raised questions about a real estate transaction entered into between the Boston Redevelopment Authority and the
Islamic Society, which transferred to the latter a plot of land in Boston, at a price well below market value, for the construction of a mosque and other facilities.

The critics urged the Boston authorities to reconsider their decision to provide the land on such favorable terms (which included promised contributions to the community by the
Islamic Society, such as holding lectures and offering other teaching about Islam) to an organization whose present or former leaders had close connections with or who had otherwise supported terrorist organizations.

On the face of it, the Islamic Society was a surprising entry into the legal arena. Its founder,
Abdurahman Alamoudi, had been indicted in
2003 for his role in a terrorism financing scheme, pleaded guilty, and had been sentenced to a 23-year prison term. Another individual, Yusef
Al-Qaradawi, who had been repeatedly identified by the Islamic Society as a member of its board of trustees, had been described by a U.S.

Treasury official as a senior Muslim Brotherhood member and had endorsed the killing of Americans in Iraq and
Jews everywhere. One director of the Islamic
Society, Walid Fitaihi, had written that the
Jews would be “scourged” because of their
“oppression, murder and rape of the worshipers of
Allah,” and that they had “perpetrated the worst of evils and brought the worst corruption to the earth.”

The Islamic Society nonetheless sued, claiming both libel and civil-rights violations. Motions to dismiss the case were denied, and the litigants began to compel third parties to turn over documents bearing on the case. In short order, one after another of the allegations made by the
Islamic Society collapsed.

THE complaint asserted that the defendants had falsely stated that money had been sent to the
Islamic Society from “Saudi/Middle Eastern sources,” and that such statements and others had devastated its fund-raising efforts.

But documents obtained in Discovery demonstrated without ambiguity that fund-raising was (as one representative of the Islamic Society had put it)
“robust,” with at least $7.2 million having been wired to the Islamic Society from Middle Eastern sources, mostly from Saudi Arabia.

The Islamic Society claimed it had been libeled by a variety of expressions of concern by the defendants that it had provided support for extremist organizations. But bank records obtained by the defendants showed that the Islamic Society had served as funder both of the Holy Land
Foundation, a Hamas-controlled organization that the U.S.

Treasury Department had said “exists to raise money in the United States to promote terror,” and of the Benevolence International
Foundation, which was identified by the 9/11
Commission as an al Qaeda fund-raising arm.

The complaint maintained that any reference to recent connections between the Islamic Society and the now-imprisoned Abdurahman Alamoudi was false since it “had had no connection with him for years.” But an Islamic Society check written in
November 2000, two months after Alamoudi publicly proclaimed his support for Hamas and Hezbollah, was uncovered in discovery which directed money to pay for Alamoudi’s travel expenses.

To top it all off, documents obtained from the
Boston Redevelopment Authority itself revealed serious, almost incomprehensible, conflicts of interest in the real-estate deal. It turned out that the city agency employee in charge of negotiating the deal with the Islamic Society was at the same time a member of that group and secretly advising it about how to obtain the land at the cheapest possible price.

So the case was dropped. No money was paid by the defendants, no apologies offered, and no limits on their future speech imposed. But it is not at all as if nothing happened. The case offers two enduring lessons. The first is that those who think about suing for libel should think again before doing so. And then again once more.

While all the ultimate consequences to the Islamic Society for bringing the lawsuit remain uncertain, any adverse consequences could have been avoided by not suing in the first place.

The second lesson is that in one way (and perhaps no other) we should learn from the English system and award counsel fees to the winning side in cases like this, which are brought to inhibit speech on matters of serious public import. Because all the defendants in this case were steadfast and refused to settle, they were eventually vindicated.

But the real way to avoid meritless cases such as this is to have a body of law that makes clear that plaintiffs who bring them will be held financially responsible for doing so.

Mr. Abrams, a partner in the law
firm of Cahill Gordon & Reindel LLP,
represented Steven Emerson in the case discussed
in this op-ed.

Our
dossier on the Lipstradt Trial, Jan-April
2000

write to David
Irving