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Apology Ends Defamation Suit

March 17, 2010

An unusual defamation suit by a professor against an emeritus professor has ended -- without the $2 million payout that the plaintiff had sought, but with a statement by the lawsuit's target that the plaintiff is not a terrorist. Both sides are claiming victory in a case that raised questions about the freedom of academics to attack union leaders. But the plaintiff says that the issue is the right of faculty leaders to stand up to unrelenting personal attacks.

The suit was filed in 2007 over comments made by Sharad Karkhanis, an emeritus professor at Kingsborough Community College who publishes The Patriot Returns, an online newsletter that features regular, caustic criticism of the City University of New York's faculty union. According to the newsletter, the Professional Staff Congress, which is an affiliate of the American Federation of Teachers, is a poorly-run union that focuses too much on leftist politics to be effective on behalf of its members.

One of the issues in the lawsuit was comments Karkhanis wrote about Susan O'Malley, an English professor at Kingsborough, who was at the time a member of the union's executive board. The comments focused on O'Malley and her push to protect the job rights of Mohammad Yousry, who was fired from CUNY and who was convicted (in a controversial case that some believe was unfair) of supporting terrorist activities and of Susan Rosenberg, a CUNY instructor who served jail time for her role in the Weather Underground. In several references, Karkhanis mocked O'Malley for her efforts on behalf of these individuals, whom he dubbed terrorists, and questioned why she was so focused on them. In comments he says are satire, he referred to O'Malley's "Queda-Camp," to her desire to "bring in all her indicted, convicted and freed-on-bail terrorist friends" to college jobs, and so forth. He wrote that she "does not worry about the 'ordinary' adjunct -- but she is worried about convicted terrorists."

The tough tone is the style of the newsletter, which calls Barbara Bowen, the president of the union, "Dear Leader," after the North Korean dictator.

As justification for seeking $2 million in damages, O'Malley said that she was being accused of being a terrorist. While she has said that her reputation was being slandered, others have said that the suit set a dangerous precedent for academic freedom in that a faculty member was being attacked in the courts for his criticism of a powerful figure (even if in this case the powerful figure was a union leader, not an administrator). One blog was formed to defend The Patriot Returns by academics who said they were staying anonymous to avoid being sued by O'Malley.

As part of the settlement, Karkhanis has issued a statement in his newsletter in which he says that he does not believe O'Malley to be a terrorist. Since Karkhanis has maintained that he never believed her to be a terrorist, but was engaged in satire, he maintains this is no defeat. The statement says: "We do not believe Professor Susan O'Malley to be a terrorist, and deeply regret if she, or any of her associates, understood us to have labeled her as such. We are sorry if anything published in The Patriot Returns has been interpreted in such a way. We do not believe that anything published in The Patriot Returns has exceeded the bounds of permissible speech, but express our profound sorrow if Dr. O'Malley sustained any damage to her reputation or suffered any emotional pain or suffering as a result of these statements."

The lawyer representing Karkhanis, Mark E. Jakubik, also published a statement in the newsletter, arguing that this is a full victory for his client. "The settlement did not involve an admission of liability or wrongdoing by Dr. Karkhanis. To the contrary, as is clearly iterated in the statement, we continue to believe that none of the material published in The Patriot Returns that was at issue in the lawsuit was defamatory or otherwise actionable for any reason. Second, there is no financial aspect to the settlement, and Dr. Karkhanis is not required to make any payment whatsoever to Dr. O'Malley or anyone else. Third, Dr. Karkhanis remains free to publish The Patriot Returns without prior restraint. In sum, we believe that, given the terms upon which Dr. Karkhanis agreed to resolve this matter, the settlement represents a significant victory for free speech and academic freedom, and The Patriot Returns will continue to stand as an unabashed defender of those values."

In an interview, O'Malley said that the case "was never about money" so that she did not view the settlement as anything but a victory.

She said that she sued after being attacked for years, and after being attacked in ways that not only were personally hurtful, but that limited her ability to lobby in Albany on behalf of faculty interests. "Everywhere I would go, they would say 'Oh, you are the one being attacked all the time,'" she said.

The repeated attacks, which she said represented the thinking of conservative faculty members, were not satire, she said, because it was never clear what was satire and what was not. Further, she said that the attacks were "an attempt to silence me," so her suit was not an attack on free expression, but a defense of it. She said she was legitimately concerned about being branded a terrorist and thought her name might end up on a government no-fly list. She said that she returned to Kingsborough -- after being on leave to perform various faculty governance roles -- and found that many faculty members didn't know her, but had read about her in the newsletter.

Ultimately, O'Malley said, she hoped that the case might "create some good case law" about what can be done "when people are spreading lies" online. But she said she felt she had won a victory in that, since she sued, she hasn't been attacked in the same way. "I just wanted it quiet for a while," she said.

 

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