Tuesday, November 6, 2007

Legal Scholars Take Note of O'Malley v. Karkhanis

From Professor Paul Secunda at the Workplace Prof Blog
November 5, 2007

CUNY Defamation Suit as an Attack on Academic Freedom?

The intersection of academic freedom and defamation of another professor is a tricky area.
Take this case from last week's Inside Higher Ed:
No one could accuse Sharad Karkhanis of pulling his punches. The emeritus professor at Kingsborough Community College publishes The Patriot Returns, an online newsletter that critiques the leadership of the faculty union at the City University of New York. The overall thrust of the newsletter is that the Professional Staff Congress, which is an affiliate of the American Federation of Teachers, is poorly run, focused too much on leftist politics to be effective on behalf of its members.
By carefully monitoring meeting minutes, newsletters, blogs and the like, Karkhanis acts as a self-appointed watchdog of the union. And he can bark. He mixes his analysis with choice nicknames. Barbara Bowen, the president of the union, is dubbed “Dear Leader,” after the North Korean dictator.
One of Karkhanis’s other favorite targets has been Susan O’Malley, a professor of English at Kingsborough and a member of the union’s executive board. The newsletter has dubbed her “The Queen of Released Time” for her ability to win time off from teaching for her union or Faculty Senate duties. O’Malley is now fighting back — she’s sued Karkhanis for $2 million, charging him with libel and defamation. To O’Malley, the issue is one of her damaged reputation. Given that faculty unions normally pride themselves on defending the right of dissenting professors — especially those who poke fun or criticize those in power — some professors see the lawsuit as an attack on academic freedom . . . .
Several CUNY faculty members who have been critical of their union have been blogging in defense of Karkhanis, arguing that his blog deserves First Amendment protection and suggesting that leaders of the union are nervous about the popularity of his newsletter, particularly given active opposition that came close to unseating the union leadership in the last election and that is expected to mount another challenge soon.
So stinging satire or a meritorious claim for damage to reputation? And where exactly does academic freedom start and libel begin? And finally, is O'Malley a "public figure," so malice has to be shown to support a defamation claim consistent with the First Amendment?

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