Kyl’s proposal would allow such lawsuits to be moved to federal courts if the defendant so desires, noting that the federal-defense-based removal authorized by the Free Press Act is “well within Congress’s Constitutional authority.”
And while Kyl himself spoke in generalities regarding the FPA, the Gates of Vienna blog illuminated one of the more currently germane reasons for combating the strategy referred to as “lawfare.” “Islam can never gain a significant toehold in the United States unless it can somehow prevent the unfettered discussion of sharia,” reveals the August 18th posting. “Researchers who delve into Islamic law and its practical effects tend to observe that sharia runs entirely contrary to the United States Constitution, the Universal Declaration of Human Rights, and the laws and constitutions of all European countries as well as the EU. To point this fact out in public is to thoroughly discredit Islamic doctrine.”
The blog further notes the Islamists’ strategy for counteracting that reality. “In order to suppress the discussion of such matters, the agents of the Muslim Brotherhood must make ‘discrediting Islamic doctrine’ the equivalent of ‘defaming a religion,’” and toward that end they will file “frivolous lawsuits against those who criticize Islam,” financed by a “virtually bottomless well of petrodollars” forcing the targets of such lawsuits “to cave in quickly and settle out of court, thus ceding just a little more legal territory to the rule of sharia.”
If the FPA passes, those targeted would have the opportunity to move for a summary dismissal of the suit. The law would force the plaintiff to demonstrate that the suit is substantive. If the plaintiff fails to do so, the suit would be dismissed and the plaintiff would be required to pay the defendant’s costs.
Such a law ought to be unnecessary, given the specific freedoms outlined in the Constitution’s First Amendment. But America is long past the point where the sanctity of that document can compete with the substantial numbers of attorneys and their clients willing to game the system in order to silence legitimate critics and whistleblowers. The de facto ability to threaten truth-tellers with financial catastrophe is the ability to threaten the truth itself.
Yet it remains to be seen if Kyl’s bill will pass. Democrats currently control the Senate, and lawyers and law firm industries have long aligned themselves with the Democratic Party, having contributed far more to their campaign coffers than those of Republicans for more than a decade. In the 2008 presidential election cycle, the legal industry contributed a whopping $234 million to federal political candidates and interests. Seventy-six percent of those contributions went to Democratic candidates and committees. Any statute that even hints at instituting a “loser pays” element in american jurisprudence is utterly anathema to the industry. Thus, Kyl’s proposal is likely to come down to a simple equation: will Democrats do what is best for the nation as a whole — or what is best for one of their favored constituencies?
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