On The Fence Films Confirms That There Is No Indiana University Lawsuit

Mr. Langbert,


There is no lawsuit.

Best Regards,

Stuart Browning
On The Fence FIlms

O'Malley v. Karkhanis: In Pursuit of the Acadmic Alfred E. Neuman

Professor Susan O’Malley’s attorney, Joseph Martin Carasso of New York City, filed her formal defamation complaint against Emeritus Professor Sharad Karkhanis 11 days ago. The complaint is well-written and Attorney Carasso deserves credit for clear, no-holds-barred writing. I have recorded the entire complaint in my blog.

There are several issues in O’Malley v. Karkhanis, John Doe and Jane Doe that deserve public scrutiny. One involves the scope of academic freedom. A second involves freedom of speech in a collective bargaining unit and the interaction of labor law with defamation and First Amendment rights. A third involves the extent to which the courts and public dispute resolution processes interact with collegial academic processes. After mentioning these points, I review the blogger and media coverage of the O’Malley case. Then, I mention a couple of the key points in Professor O’Malley's complaint and offer some comments.

The O’Malley case is consistent with the long-observed deterioration of universities’ willingness to tolerate dissent. It may suggest an extension of this deterioration to universities’ use of the courts to suppress external criticism. Much as Singapore’s dictator Lee Kuan Yew and Saudi billionaire Sheikh Khalid Bin Mahfouz have used litigation to silence Chee Soon Juan and Rachel Ehrenfeld, so universities may have begun to use tax-exempt and publicly financed assets to bring politically motivated law suits.

Another potential implication of the O’Malley case is that Professor O'Malley implicitly argues that academic freedom is more limited than the freedom of speech associated with public political discourse. In other words, academic freedom may be more rather than less constrained than public freedom with respect to discourse concerning public figures. Whether O’Malley is a public figure is debatable. The courts may choose to fashion a different standard of speech for academic discourse than for public discourse.

A third point is that there are potential labor issues. In union certification elections the National Labor Relations Board has attempted to establish the concept that there must be laboratory conditions whereby employers and unions cannot threaten or cajole bargaining unit members to vote for or against a union. The PSC is a creature of New York’s Taylor Law, not the National Labor Relations Act. The question in this case is whether an elected union officer, who shares interests in common with the union president (Barbara Bowen) and other officers, should have the right to suppress dissident speech and opinion through the transactions costs associated with law suits. The pro-union New York courts may well consider that this is acceptable.

A fourth point pertains to collegiality. Several officers of the faculty union, the Professional Staff Congress (PSC), to include President Bowen and Professor O’Malley, have previously publicly attacked another member of the faculty, Professor KC Johnson, in part claiming that he lacked collegiality. Now, Professor O’Malley sues Professor Karkhanis, sidestepping collegial processes and turning her dispute with him into a matter of public record. Can law suits be viewed as part of academic governance processes? If so, can the public continue to support the expense of collegial processes given that academics cause additional dispute resolution costs also at the public's expense?

Media and Blogger coverage of O’Malley v. Karkhanis, John Doe and Jane Doe

On October 31, Annie Karni of the New York Sun noted that Professor O’Malley said of her case that "it's all very, very silly". Karni also quotes Professor Karkhanis as saying that the law suit is “an attempt to infringe on his freedom of speech” and that all of his comments were meant as “satire”. The two statements are parallel. Professor O’Malley characterizes her case as “silly” because Professor Karkhanis’s statements about her were satirical.

As well, the Sun quotes Professor Karkhanis:

"She's a public figure, and I have a right to say that, based on the evidence I have and the pattern I've seen of this woman…Why would someone try to assist the terrorist people when you have good Americans who are looking for the job?"

The Sun notes that Professor Karkhanis criticized Professor O’Malley for defending the right of Susan Rosenberg to teach. Rosenberg had spent 16 years in prison for explosives possession. As well, Professor Karkhanis criticized Professor O’Malley’s statement in a University Faculty Senate (UFS) meeting that Mohammed Yousry, convicted of terrorist-related activity, ought to be given a job.

In the New York Post, Dareh Gregorian notes that much of Professor O’Malley’s complaint revolves around Professor Karkhanis’s statements concerning her “obsession with finding jobs for terrorists" and her support for Lynne Stewart, Mohammed Yousry and Susan Rosenberg. Gregorian also notes that Professor Karkhanis believes that what he wrote was satire and that his statements were “appropriate."

Candace de Russy notes that Professor Karkhanis made several accusations about Professor O'Malley after she proposed to rehire Mohamed Yousry, an Arabic-language translator convicted of supporting terrorist activities. He was fired from York College.

In FIRE’s the Torch, Luke Sheahan points out that Professor Karkhanis has been a critic of Professor O’Malley and that he had stated that she was trying to “bring in all her indicted, convicted, and freed-on-bail terrorist friends to the university”.

In Frontpagemag, Phil Orenstein notes that the PSC has a history of aiding and abetting terrorists. Phil also notes that the PSC has focused on left-wing political activity while bread and butter issues have languished and “welfare fund reserves fell by 97%”.

Phil also notes that past issues of Karkhanis’s newsletter, Patriot Returns, have attacked Professor O’Malley for supporting Professor Timothy Shortell, who claimed that all religious people are “moral retards”. Professor Karkhanis has also attacked Professor O’Malley for attempting to find Susan Rosenberg a job and her public statement that Mohammed Yousry was seeking a job at a faculty senate meeting. Phil argues that Professor Karkhanis’s newsletter is a check against abuses of power by the PSC and that the law suit is a free speech issue.

The United Federation of Teachers, Phil points out, has seen considerable internal rancor but has never seen a law suit by a union officer against a member, with the union openly taking the officer’s side. Phil also argues that O’Malley is a public figure and so is fair game for criticism.

In a recent blog in Democracy Project Phil Orenstein also notes that the Queens Village Republican Club in New York has named Professor Karkhanis “Educator of the Year” and will hand him an award for his ongoing struggle for freedom of speech and his refusal to be silenced by the PSC’s program of suppression of conservatives.

An example of the PSC's suppression of conservatives appears in History News Network. KC Johnson notes that Dorothee Benz,a PSC spokesperson argues that

“Free speech has limits, as any first year law student knows. O’Malley’s case concerns one of those limits, where the right to free speech comes up against the harm caused by libelous statements. Whether accusing someone of aiding and training terrorists, in a post-9/11 world, rises to meet the legal standards.”

The PSC sees conviction for explosives possession or conviction for colluding with terrorists as protected speech, but it views criticism of its officers as falling outside the limits of free speech, even when those accusations have factual basis.

Johnson adds that although Karkhanis’s rhetoric can be “over the top”, it played a key role in last year’s union election. Karkhanis’s newsletter has called O’Malley “Queen of Released time” and has criticized O’Malley for multiple office holding and “non-accomplishment” Johnson points out that

“unless O’Malley is going to claim that Yousry and Rosenberg were not convicted terrorists, Karkhanis’ statements about her urging CUNY colleges to hire terrorists were factually true. Rosenberg was a member of a terrorist organization; Yousry was accused and convicted of aiding a convicted terrorist. So what would motivate such a suit?"

Scott Jaschik of Inside Higher Ed notes that while “Karkhanis said that he does not believe O’Malley to be a terrorist (or a queen, which he calls her frequently)", Professor O’Malley’s attorney said that “falsely accusing or alleging someone is a terrorist or is aiding terrorists in the current year, post-9/11, is a serious charge”. Professor Karkhanis replies that “the factual basis behind the terrorism jabs — that O’Malley went to bat for these individuals — has been demonstrated by e-mail messages he posted on his Web site.”

The O’Malley Complaint

I blog the O’Malley complaint in its virtual entirety here. A few of the points are that Professor Karkhanis said that Professor Susan O’Malley comes from a wealthy background, which Professor O’Malley denies. He also said that she used “intimidation” and joining “radical groups” to become leader of the University Faculty Senate to avoid “dirtying her hands with chalk”. He said that O’Malley tried to help Susan Rosenberg, a convicted criminal. He said that O’Malley tried to pressure departmental chairs to help Yousry, who was convicted of abetting terrorism. He said that the “Queen of Released Time” (Professor O’Malley) was jockeying to have Lynn Stewart hired to the staff of the PSC union. In a second cause of action, Professor O’Malley complains that Professor Karkhanis’s newsletter used a headline:

“O'MALLEY-QUEDA TRAINING CAMP: FINDING JOBS FOR TERRORISTS A KCC EXCLUSIVE”

and that Professor Karkhanis called the New Caucus, the left-wing group that dominates the Professional Staff Congress, the “Never-Any-Action Caucus”. Professor Karkhanis states that:

“Her major goal is to establish a Training Camp to recruit and train, at Kingsborough, people like herself who are misguided, misdirected, misinformed. O'Malley seeks to find jobs at KCC and other CUNY colleges for Mohammed Yousry. 'O'Malley doesn't care about us--her only concern is that Yousry should teach at CUNY. O'Malley has also been job-searching for Susan Rosenberg…O'Malley, though, doesn't care about us--her only concern is that Rosenberg should teach at CUNY…We believe that the above mentioned KCC individuals [Susan Farrell, Robert Singer, Jack Arnow, Robert Putz, Patrick Lloyd] were selected for the O'Malley-Queda Recruitment Camp because she thinks that (1) they all are naive and gullible and (2) she can infiltrate the Department and College-wide P&Bs at KCC and at other CUNY colleges to push her PERSONAL AGENDA of finding jobs for Yousry, Rosenberg and other terrorists...Meanwhile remember: the Queen of Released Time is a devious, dangerous and More to come on the Queen."

There are eight additional causes of action, for a total of ten. Each of them refers to this sort of silly diatribe about Professor O’Malley. The entire complaint is here and it is evident that all of these statements were satirical. I would have referred any CUNY faculty member who said to me that they really thought that Professor O’Malley wore a crown and held a scepter as “Queen of Released Time” or actually ran an al-Queda Recruitment Camp to the university's counseling center.

Analysis

There are potential dangers to freedom of speech emanating from Professor O’Malley’s decision to bring this case, so although it seems likely that she will lose, it is important to take it seriously. Arguably, the case is frivolous. However courts are not always predictable.

It is evident that Patriot Returns is and always was considered to CUNY’s own Mad Magazine. It is funny, and although I disagree with the “New Caucus” union leadership, I and likely no one else ever concluded that the Patriot's satirical claims were true. On a few occasions, based on statements in the newsletter, I contacted the union leadership such as Steve London and Barbara Bowen for further details, and they did not choose to reply.

College professors don’t always have common sense, but they are not complete idiots. An audience of college professors is able to discern satire from fact. Also, the PSC has far more resources than Professor Karkhanis, while Professor O'Malley has the same, and both the PSC and Professor O'Malley could have responded openly through ordinary internal communication processes to any accusations. I do not recall receiving any communications from Professor O'Malley, although I have met her several times.

Along these lines, Professor O’Malley openly stated to the Sun's Annie Karni (kudos, Annie) that this is a “silly” case. As well, Karkhanis presents evidence in the form of minutes of the senate meeting that Professor O’Malley in fact made the comments he alleges. There is little debate about the underlying fact that Professor O’Malley has repeatedly and openly supported left wing kooks. The questions that the complaint raise focus on satirical hyperbole. In political discourse, should free speech be infringed? The New Caucus and the Professional Staff Congress think so. I disagree with them.

Arguably, by virtue of her becoming an ex-officio member of the Board of Trustees of CUNY, Chair of the University Faculty Senate, Executive Director of the Radical Caucus of the Modern Language Association, contributor and Editor of Radical Teacher and member of the CUNY union's Executive Committee, Professor O'Malley became a public figure. I am not sure of the definition of “public figure”. I have contacted a respected labor and fiduciary duty attorney I have known for many years and posed him the question whether a union officer and/or faculty senate officer who runs for office is considered a public figure in the same sense that a public politician is. I suspect that this is an open question, and that Professor O’Malley’s case might do serious damage to the cause of free speech if it is not viewed as frivolous.

As well, there is a serious question whether the kind of freedom of speech that applies to public discourse applies to private universities. As a public university CUNY is subject to the same First Amendment rules as apply to public discourse, in which case officials ought to be treated the same as they are ordinarily, although this is not certain. As a union officer and head of the faculty senate Professor O’Malley might be construed as a public official, but are these roles really public? I would hope that the answer is yes, but if Professor O’Malley has intended to institute additional avenues for suppression in American universities, she has been creative in selecting this avenue.

My opinion about the “John and Jane Doe’ defendants is that Professor O’Malley is reaching. In my conversations with Professor Karkhanis he never once mentioned a coauthor. In fact, the very use of the “John and Jane Doe” are a kind of legal slur. Perhaps Professor O’Malley is thinking that other satirist, Alfred E. Neuman, is John Doe.

In summary, Professor O’Malley probably has no case. If she does, it is one more stake in the heart of academic freedom and of universities. Clearly, she attempts to use the legal system to intimidate Professor Karkhanis. She does not want Professor Karkhanis to continue his writing of the Patriot to benefit of the PSC’s radical leadership.

O'Malley v. Karkhanis; Johnson v. Yousry

I have emailed the following inquiry to Susan O'Malley, a CUNY activist who is suing Sharad Karkhanis:

From: "Mitchell Langbert"
To: "Sue O'Malley"
Cc: "KC Johnson"
Subject: Karkhanis, Johnson and Yousry
Date: Mon, 31 Dec 2007 21:17:21 -0500
MIME-Version: 1.0
Content-Type: multipart/alternative;
boundary="----=_NextPart_000_001F_01C84BF2.87BF9E30"
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X-MIMEOLE: Produced By Microsoft MimeOLE V6.00.2900.3198

Dear UFS Chair O'Malley:

Further to my earlier e-mails, I would like to respectfully ask you two additional questions for my blog. I hope you don't mind.

As I am reading through your complaint concerning Professor Karkhanis, I noticed the following statement:

"Contrary to the defendants' Utterances and implications, UFS Chair Susan O'Malley's duties included representing all faculty of CUNY (including Yousry, who was then a member of the faculty) each of whom she believes are entitled to due process."

I am somewhat curious about the link between this point and your comments about Professor KC Johnson that were recorded several years ago. In particular, you were unsupportive of Professor Johnson's promotion bid at that time and publicly stated so.

Do you feel that you were remiss in your treatment of Professor Johnson? Or did you have a change of heart since then concerning your role in representing all faculty as chair of the UFS?

Second, do you feel that your treatment of Yousry was equivalent to your treatment of Johnson? The complaint about Johnson involved collegiality, and failing to represent him, you voiced concern about him, saying that it was a difficult question. In contrast, Yousry was convicted of terrorist-related activity.

Third I am curious as to the implications of this point for CUNY policy. The departmental chairs on rare occasion make frivolous decisions based on collegiality and other pretexts that are inconsistent with serious academic criteria. If you claim to represent all faculty how do you reconcile the representation of a chair who makes a frivolous decision and a capable junior faculty member who is terminated on the frivolous grounds?

Thanks for your help and clarification. I will blog your answer along with this inquiry.

Sincerely,

Mitchell Langbert, Ph.D.

Addendum: KC Johnson just reminded me that in 2003 Erin O'Connor of Critical Mass called O'Malley's attacks on Johnson "libelous": O'Connor writes:

"For example, it is now acceptable at CUNY for top administrators to libel those junior faculty they seek to fire. Susan O'Malley, English professor at Kingsborough Community College, president of the CUNY University Faculty Senate, and ex oficio member of the Board of Trustees, published a statement on Johnson's case in the Senate Digest. Here is the text:

"'As the faculty member on the Board of Trustees, although without a vote, I first heard that the Board was being asked to vote on Professor Robert David Johnson's promotion and early tenure as the February 24, 2003 Board meeting was convening. A sheet of paper announcing an addendum to the University Report was placed at my seat. We were to vote on Professor Johnson's promotion to full professor effective 1/1/03 and his tenure effective 9/1/03. This action had not been presented to the Board Committee on Faculty, Staff, Administration for discussion and vote, nor had it been placed on the Board Calendar so that faculty could address it at the Board Public Hearing. The only discussion at the February Board of Trustees meeting consisted of a statement from Trustee Pesile that she had been trying to bring this matter to the Board's attention since October. However, Trustee Wiesenfeld had made known to the New York Sun his views supporting Professor Johnson.

"'Chancellor Goldstein recommended to the Board that it overturn the decision by the Brooklyn College faculty and the President of Brooklyn College. He said that after having received a complaint from Professor Johnson's attorney, he had given Professor Johnson's file to three professors who had distinguished records, and who had voted to promote Johnson to full professor after his having taught for three and one half years at Brooklyn College. The three professors who voted to promote Professor Johnson are Pamela Sheingorn, Professor of History at Baruch and Executive Officer of the Doctoral Program in Theater at the Graduate Center; David Reynolds, University Distinguished Professor of English at Baruch College; and Louis Masur, chair of the City College History Department.

"'It is not my place to judge Professor Johnson's scholarship. A historian, he has written several reputable monographs. However, although he has one other monograph in press, he has not published since his tenure clock started at Brooklyn College. He was scheduled to have another year at Brooklyn College before coming up for tenure. While I agree with the AAUP that collegiality, a reason cited in the. Johnson case, should not be the sole criterion for the denial of promotion, as I talk to Brooklyn College faculty I realize that this is an extremely complex case.
"What kind of message does this give to faculty coming up for promotion? That it is better for a faculty member who anticipates any difficulty to hire a private lawyer and ask the Chancellor to form his own committee to recommend promotion and tenure?.

[I note that that Professor Johnson's record at that point far exceeded the number of publications that Professor O'Malley pretended and that Professor O'Malley's statement at this very critical point in Johnson's career was utterly untrue and a defamatory lie. Given her reckless disregard for the truth in this matter, O'Malley should hang her head in perpetual shame rather than engage in litigation about her own flimsy career.]

"'As Chair of the University Faculty Senate and as one who is concerned with governance issues, I believe that the Chancellor's action does a disservice to shared governance at CUNY. On March 25, 2003, th UFS plenary voted to support a Resolution on the Integrity of the Promotion and Tenure Process which was written in response to the Chancellor's grant of early promotion and therefore tenure to Professor Johnson. Chancellor Goldstein's action overrode the decisions of the three committees at Brooklyn College involved with the promotion and tenure process, as well as the decision of the President of Brooklyn College. The UFS resolution "calls upon the Chancellor to affirm a policy of non-interference with established campus and university governance and contractual procedures, including appeals and grievances."

[Professor O'Malley, with respect to Professor Johnson, saw her role as defender of academic processes rather than representative of "all faculty of CUNY". It seems that Professor O'Malley carries a many-edged sword, none of the edges being particularly truthful.]

"'Cordially,

"'Susan G. O'Malley'"

Request to Sue O'Malley for Her Released Time/Teaching History

From: "Mitchell Langbert"
To:
Subject: Copy of Your Released Time/Courses Actually Taught for Past 10 Years
Date: Mon, 31 Dec 2007 16:25:23 -0500
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boundary="----=_NextPart_000_000D_01C84BC9.BE920750"
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X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2900.3198


Dear Sue: As I'm blogging about your complaint against Karkhanis I would like to post data that supports your side as well as his. I noticed that he has referred to you as "Queen of Released Time". I would like to post your actual hours of released time each semester along with the courses you've actually taught by semester for the past ten years:

Semester/Year / Hours of Released Time / Classes Actually Taught / Hours Actually Taught

Fall 1997
Spring 1998
Fall 1999
Spring 2000
.
.
.

Thanks,


Mitchell Langbert, Ph.D.