November 3, 2007
Libel tourism at CUNY
We've read a lot in the news lately about "libel tourism," or the habit alleged terror financiers have of using the accommodating English courts to mount--and win--spurious libel suits against those who purport to expose their ties to terror. Rachel Ehrenfeld, author of Funding Evil, has been a target of one of these, and is now defending her free speech rights in the American courts. And over the summer, Cambridge University Press became so worried about a similar suit that it recalled and pulped Alms for Jihad, a book about ties between Muslim charities and terrorism.
Now, in a curious academic twist, a CUNY English professor and faculty union leader is doing some local libel tourism, suing a fellow CUNY professor who has satirically attacked her for her efforts to ensure the academic employment of convicted terrorists such as former Weatherman Susan Rosenberg.
Susan O'Malley is a frequent target of Sharad Karkhanis, whose online newsletter charts--and regularly pillories-- the antics of CUNY's faculty union, which he regards as both incompetent and ideologically biased. Karkhanis has devoted special attention to O'Malley. And she doesn't like it.
Expressing sharply worded criticism of O'Malley's work for the union, Karkhanis's writing would appear to be nothing more outlandish than an exercise of his free speech rights, not to mention his academic freedom. But there are a lot of academics out there who view unwelcome criticism as a form of "assault" (the word is everywhere in debates about such things). They reason from that overblown characterization, which misconstrues words as weapons, that hurtful language is an actionable violation of one's person. And then they get onto the terrain that leads them to craft speech codes and, in this case, to sue.
The doublespeak surrounding the lawsuit is fascinating. It's become common for defenders of an academic status quo that is in many ways indefensible to accuse critics of that status quo of threatening academic freedom. That's what the AAUP did in its Freedom in the Classroom statement. It's what the Ad Hoc Committee to Defend the University does in its recent statement. And it's what O'Malley is claiming now--even though the facts suggest that if anyone is threatening open debate and academic freedom, it's her.
Here's O'Malley's lawyer, speaking to Inside Higher Ed: "What the Web site is trying to do is to silence Susan O'Malley by branding her a terrorist, which is the exact opposite of a free debate." Translation: O'Malley wishes to silence her critic by accusing him of trying to silence her; she doesn't like his criticism, and rather than respond to him, she's trying to shut him down--and make him pay.
Also speaking to IHE, KC Johnson notes that the CUNY union now stands at an ethical crossroads; how it responds to O'Malley's suit will say a great deal about whether it's really committed to the academic freedom of its members. That will, in turn, reveal whether what the union really wants to do is use academic freedom to promote some views while suppressing others. Noting that in the past, "PSC president Barbara Bowen has suggested that academic freedom protected" a CUNY professor's right to label religious people "moral retards," Johnson now asks a pointed question: "Will she now similarly apply her flexible definition of the concept, and rebuke O'Malley's attempt to silence Karkhanis?"
I don't want to make light of the sharpness of Karkhanis' characterization of O'Malley. But I do want to stress that the First Amendment makes lots and lots of room for sharp characterizations; libel law in turn makes particularly large allowances for public figures, on the understanding that in a free society, a lot of flak is going to be directed their way.
Meanwhile, if you are inclined to more abstract considerations, you might wish to meditate on the broader question of how it is that we have lost our ability to comprehend and tolerate satire. In the comments at IHE, "Frizbane Manley" reproduces remarks he once delivered to young academics:
I'm leading up to my advice to young faculty members. You young folks in graduate school and in your first positions as assistant professors, however you structure your careers, do not, under any circumstances, write parody or satire. Eschew irony! Take my word for it, you will be writing in an environment in which sarcasm, biting wit, and paradox will confuse your colleagues, anger your chair and dean, and infuriate your president. And the legislators who vote on bills providing financial support for your university ... well, du-uuh. Were Jonathan Swift your colleague, 'A Modest Proposal' and 'Gulliver's Travels' would forever block his progress toward promotion and tenure.
It's not that these academics and legislators object to satire and irony, per se; it's simply that they don’t understand it ... they are forced to take it at face value ... the curse of the intellectually challenged.
One is reminded of a scene in the Steve Martin classic, Roxanne. Martin, in his guise as local fire chief, is walking a naked Daryl Hannah home after she has been locked out of her house. A hedge is between them, for propriety's sake. "Nobody had a coat?" Hannah/Roxanne asks. "You said you didn't want a coat," Martin replies. "Why would I not want a coat?" Roxanne repeats. "You said you didn't want a coat," Martin repeats. "I was being ironic," Roxanne says, to which Martin responds, "Oh, ho, ho, irony! Oh, no, no, we don't get that here. See, people ski topless here while smoking dope, so irony's not really a, a high priority. We haven't had any irony here since about '83, when I was the only practitioner of it. And I stopped because I was getting tired of being stared at."
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As much disdain as I generally have for things self-consciously and self-righteously pan-European, someone needs to appeal an English libel judgment to the European Court of Human Rights: continuing to allow the burden of proof to be put on the defendant in these amorphous and totally subjective suits--ironically the last bastion of the civil jury in England--is a continuing danger to free speech the world over.
Meanwhile, if you are inclined to more abstract considerations, you might wish to meditate on the broader question of how it is that we have lost our ability to comprehend and tolerate satire.
Maybe I have also lost that ability, or maybe the excerpts in the article don't do justice to what Karkhanis wrote, but I'm not seeing any "satire" or "irony". He's criticizing her for her literal involvement with two convicted terrorists, and backing it with some mild hyperbole.
"Satire" seems to be being invoked more for its legal utility than its literary appropriateness.