From the Introduction.
Buy Lawfare: The War Against Free Speech on Amazon
Freedom of speech and the press are the foundations of a free society. However, any protection of these liberties would ring hollow if it did not include the right to speak and to write critically about the most important and controversial issues of our times. Today’s hot button issues include terrorism, terror financing, Islam, the Islamist movement and related topics. Unfortunately, the free speech rights of authors, researchers, and journalists commenting on these subjects are increasingly under attack through both violent and non-violent means.
The Islamist movement is that which seeks to impose tenets of Islam, and specifically Shariah (authoritative, institutionalized Islamic law dating back to the 9th Century) as a legal, political, religious and judicial authority in both Muslim states and in the West. It has two wings—one violent and one technically legal, which can operate apart but often reinforce each other. While the violent arm attempts to silence speech by burning cars when Danish cartoons of Mohammed are published, by murdering filmmakers such as Theo Van Gogh on the streets of Amsterdam, and by forcing authors such as Ayaan Hirsi Ali and Dr. Wafa Sultan into hiding in the U.S., the legal arm is skillfully maneuvering within Western legal systems, both here and abroad, to silence and punish speech critical of radicalized Islam, terrorism and their sources of financing. Over the last decade, a more subtle challenge has emerged in the form of “lawfare.”
Although not a new phenomenon, lawfare was brought to the attention of the modern world in an essay by Major General Charles Dunlap, of the U.S. Air Force Judge Advocate General Corps, defining it as “the use of the law as a weapon of war.” The definition has since been expanded to include the wrongful manipulation of the legal system to achieve strategic military or political ends. Lawfare consists of the negative manipulation of international and national human rights laws to achieve purposes other than, or contrary to those for which they were originally enacted.
The strategic end of Islamist lawfare is to further the goals of the Islamist movement, one of which is to abolish public discourse critical of Islam and punish anything deemed blasphemous of its prophet Mohammad. Another goal of Islamist lawfare is to impede the free flow of public information about the threat of Islamist terrorism thereby limiting our ability to understand it and destroy it. In this way, Islamist lawfare takes the form of a complementary legal campaign to terrorism and asymmetric warfare.
We emphasize wrongful because lawfare is an inherently negative undertaking and must be defined as such to have any real meaning. Otherwise, we risk diluting the phenomenon and feeding the inability to distinguish between what is the correct application of the law on the one hand and what is lawfare on the other. Because that is the essence of the issue here: how do we distinguish between a constructive, legitimate legal battle from is a counterproductive perversion of the law, which should be allocated no precedent? The delineation is not as simple as some may like to make it. The question is not ‘Who is the target?’ but ‘What is the intention?’ behind the legal action: Is it to pursue justice, to apply the law in the interests of freedom, democracy and the marketplace of ideas, or is the intent to undermine the very system of laws being manipulated?
Islamist lawfare is often predatory, filed without a serious expectation of winning, and undertaken as a means to intimidate, demoralize and bankrupt defendants. Complaints range in their claims from administrative actions to defamation to workplace harassment to Islamophobia, and have resulted in books being banned and pulped, in thousands of dollars worth of fines and in publishing houses and newspapers rejecting important works on counter-terrorism out of fear of being the next target. From filing frivolous and malicious libel and “hate speech” lawsuits to lobbying for the resurgence of national and international blasphemy laws, we have seen a steady and alarming increase in Islamist lawfare over the past ten years. The cumulative result of these lawsuits and the threat thereof has created a detrimental chilling effect on open public dialogue about issues of national security and public concern. This chilling effect stems from a collective fear of being slapped with a lawsuit or being targeted with violence for printing anything deemed offensive to Muslims—including satirical cartoons.
Moreover, the chilling effect is cascading over all areas of public discourse regarding Islam; from academia and the government to the media and entertainment industry. (e.g., Yale University Press excising Mohammad cartoons from a forthcoming scholarly book on the topic; NPR’s report that the Ft. Hood shooter’s superiors recognized danger but failed to act for fear of seeming biased against Islam; Producers of 2012 sparing Muslim but not Christian landmarks from disaster scenes for fear of a condemnatory “fatwa.”)
Mahdi Bray, of the Muslim American Legal Society Freedom Foundation, articulated the strategy explicitly in a 2009 radio broadcast: “we’ve got to be willing to spend our money in a court of law … and not necessarily because we’re going to look for money, but…to…make you spend your money.” The potency of the approach was highlighted on February 26, 2010 when a Danish newspaper, which was sued by a Saudi law firm allegedly on behalf of 94,923 descendants of Mohammad for republishing one of the Mohammad cartoons, issued a formal apology. The paper’s sole purpose in rerunning the cartoon had been to join other Danish papers in a unified stand against intimidation of the press following 2007 threats on the life of the cartoon’s creator.19 Curiously, the paper defied the physical threats, but bowed in the face of legal ones.
In the international arena, the Organization of Islamic Cooperation (“OIC”) and several of its member states have embarked on a campaign at the United Nations to globally criminalize any speech that “defames” or “blasphemes” Islam or its religious figures. Included in its list of things to ban is anything deemed “Islamophobic”—a politically charged term that would most likely include legitimate research involving Islamic terrorism. Yet the simple fact remains, freedom of religion does not entail carte blanche freedom to practice your religion absent criticism.
The cornerstone of any liberal democracy is the right to speak freely, the right to criticize religion or government openly. Islamist lawfare attempts to subvert freedom of speech and of the press run directly counter to the founding principles of the United States wherein free and open discussion provides a crucial bulwark against repression, as in all liberal democracies. Freedom of speech is not an abstraction. It is a critical component of democratic governance that has been won through centuries of sacrifices, and paid for in blood. It is a personal right that no government, lobby group or plaintiff may legitimately curtail. Journalists exercising this right by publishing articles on national security are doing their part to ensure the continued security of the United States and the freedom of its citizens, and they must be protected.
It is hoped that the information contained herein will work to embolden authors and experts by outlining the legal framework within which they are entitled to operate. This book will demonstrate to those involved in researching or reporting on matters relating to terrorism, terror financing, militant Islam or Shariah their rights under U.S. law. Case examples of previous Islamist lawfare lawsuits, and how to avoid potential lawfare without self-censoring oneself, will be detailed herein, noting the relevant differences between United States and European Law, as well as the various jurisdictional issues posed by Internet publications.
As noted in the preliminary Disclaimer, this book is not, nor is it intended to be, a substitute for the advice of appropriate legal counsel. Nonetheless, it may prove an informative resource for those at risk of being targeted by Islamist lawfare against freedom of speech. For information on the phenomenon of lawfare in general, visit thelawfareproject.org.