In recent years, British courts have become a prime destination for "libel tourism" - the filing of libel and defamation claims in foreign courts, where the standard of evidence is lesser than American courts.
Parliament's House of Lords has established a panel to examine the possibility of amending British laws to make it more difficult for foreigners to bring defamation suits in Great Britain.
That's welcome news. But in a column in Tuesday's Guardian newspaper, Harvard Law Professor Alan Dershowitz and Hudson Institute Visiting Fellow Elizabeth Samson note that American courts already are being used by radical Islamists – not to win damages, "but with the hope of imposing an unaffordably high cost on criticism of their actions."
In addition to the monetary costs, lawsuits from Islamist groups can carry "the smear of bigotry … [which] has stifled legitimate discussion of some suspect behaviour," the authors write.
It's not a new phenomenon. In 2003, the Council on American-Islamic Relations (CAIR) sued the National Review for publishing an allegedly defamatory statement. CAIR pursued the litigation even after the magazine retracted the statement. The court threw out the case for lack of merit, but National Review paid more than $50,000 in legal fees.
Yet a libel defense can cost much more than $50,000. In 2005, the Islamic Society of Boston sued the Boston Herald and nearly a dozen others including the Investigative Project on Terrorism for defamation.
"The ISB was building New England's largest Islamic centre and the defendants were raising questions about the ISB's connections to terrorist financing and hate speech. Though the ISB dropped the lawsuit - just weeks before some of their leaders were to give sworn testimony - the defendants incurred close to $2m in legal costs," Dershowitz and Samson add.
They cite Herald columnist Howie Carr, who said the ISB lawsuit has "had had a chilling effect on journalists in Boston," a conclusion supported by an analysis of articles published in his paper from summer 2003 to winter 2007. Between summer 2003 and winter 2005, the Herald published 19 articles mentioning ISB's alleged connection with radical Islamic groups.
That changed with the litigation. After it was filed, "the paper whitewashed its reporting and no longer mentioned radicalism in the 20 articles that covered the ISB's activities during that period," Dershowitz and Samson wrote.
The cost of fighting potential litigation has to be considered by struggling publishers, and their modestly paid journalists. The result, Dershowitz and Samson argue, is the public's loss of tenacious investigative reporting.
"The New York Times, Wall Street Journal, New York Daily News, and Boston Herald have all been sued for libel for reporting about the plaintiffs' connections to radical Islam. Large newspapers may be financially capable of putting up a defence, but may not want the hassle or expense, even when the truth is on their side. Perhaps most daunting is that the extent of the problem, is hidden - one cannot know what editors under pressure deem not suitable to publish."