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Endnotes
1. Ehrenfeld v. Bin Mahfouz, 518 F.3d 102 (2d Cir. 2008).
2. A claim for declaratory relief is unlike most lawsuits in that the court only makes a declaration of the respective rights of the parties without an actual judgment in favour of either party. For a comprehensive discussion of declaratory judgment in the context of defamation law, see Dow Jones & Co., Inc. v. Harrods, Ltd., 237 F. Supp. 2d 394, 418–430 (S.D.N.Y. 2002), affirmed, 346 F.3d 357 (2d Cir. 2003).
3. Although in federal court, the case was being decided under New York law. When novel questions of state law are presented to a federal court, the court may request that the high court of the state advise the federal court of the correct interpretation of state law. A federal court is normally bound by state court interpretation of state law unless federal issues are present and overriding.
4. Ehrenfeld v. Bin Mahfouz, 9 N.Y.3d 501, 508–510 (2007).
5. Ibid., 513–514.
6. Bin Mahfouz appeared in the New York proceeding for the sole purpose of contesting jurisdiction.
7. Ehrenfeld v. Bin Mahfouz, 518 F.3d 102 (2d Cir. 2008).
8. New York Civil Practice Law and Rules (NY CPLR), sections 302 (D), 5304 (b) (8).
9. Lawrence McNamara, Reputation and Defamation (Oxford: Oxford University Press, 2007), 229.
10. In the modern defamation lawsuit, it is not at all unusual for the parties to retain linguists or journalists to offer expert testimony concerning literary devices that may have been employed by the author to give a meaning different than the bare words might suggest. See Roger Shuy, The Language of Defamation Cases (Oxford: Oxford University Press, 2010).
11. The classic reasons for free speech may also be called positive reasons for free speech as opposed to a negative reason such as Professor Schauer’s argument that free speech is necessary because of American distrust of government. Keith Werhan, Freedom of Speech: A Reference Guide to the United States Constitution (Westport, CT: Praeger, 2004) 28–40.
12. Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Cambridge, MA: Harvard University Press, 1996), 199–200.
13. Ibid., 200.