Be Careful What You Sue For
By FLOYD ABRAMS
June 6, 2007; Page A19
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 Somdomite" 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 Wittaker 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' claims before a grand jury.
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, 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, pled 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 Department 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.
Their complaint asserted that the defendants had falsely stated that monies 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, the Society, 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.