The Brooklyn College campus paper found itself in hot water and was threatened with legal action for libel by the Zionist Organization of America (ZOA), a nationwide pro-Israel activism organization, after an ongoing exchange between the two stemmed from an article published in early April.
The threat of legal action came in a Letter to the Editor, published on April 20, which led to a response from the Excelsior, then a response letter from Brooklyn College English professors, as well as a second letter to the editor from the ZOA, spanning across the past three issues.
The exchange began when an article was published in the April 6 issue of the Excelsior, titled “Tuition Freezes as CLAS Takes on ZoA,” which reported on a CLAS student government meeting. The meeting itself was on a decision to submit a resolution in regard to claims that the ZOA pushed for CUNY budget cuts. According to CLAS, the implication of the ZOA claiming to push for budget cuts for CUNY were originally written in a letter sent to CUNY Chancellor James B. Milliken and the Board of Trustees on Feb 22, 2016, and was in response to reports of several anti-Semitic incidents across CUNY campuses, including Brooklyn College. CC’ed in that letter was both New York senator Chuck Schumer, New York senator Kirsten Gillibrand, five U.S. congressmen and several others including Mayor de Blasio.
While they did not directly state it, the letter addressed the issue of a possible violation of Title VI of Civil Rights Act of 1964, which according to the U.S. Department of Justice “prohibits the discrimination on the basis of race, color and national origin in programs and activities receiving federal financial assistance,” which could failure of compliance could result in the loss of federal funding.
“It’s all political shading in all of these things,” said Professor George Rodman, faculty advisor of the Excelsior. “Under these circumstances, I thought the student journalist did a good job and the ZOA didn’t. I think they should have gone the public relations way, rather than the kind-of strong arm tactic they took.”
The ZOA claimed that the statements published in the Excelsior article were “false and defamatory” and “committed with intentionality and malice,” as according to the ZOA’s letters to the editor.
“Maybe they weren’t okay with the wording, but we, The Excelsior, still believe that the facts support that they were pushing for this budget cut. So that’s what we wrote. And we’re not going to apologize for that,” said Radhika Viswanathan, editor in chief of the Excelsior. “I did tell the ZOA that we should have contacted them for comment. Fine, we didn’t do that. But I don’t think that’s grounds for legal action. Which is why we told them, if you want to write a letter to the editor saying what you think we did wrong, we will print it. Whatever you want to clarify, just write it and we will print it.”
The ZOA’s letter, signed by Susan Tuchman, director of the Center for Law and Justice, and Zack Stern, campus director, ended with the statement, “We demand an immediate retraction of all of the above statements made about the ZOA, and acknowledgement that they were issued and published recklessly and without any effort to verify the facts, and public apology.” In which, the Excelsior published their first response in denying making any damaging, malicious or defamatory statements directly, and that all positions were quoted from a public student government meeting and attributed to a source.
“They’re alleging that it’s inaccurate. So typically, if a news organization accurately describes what happens at a public meeting, it can’t be sued. It’s part of a news organizations right to cover,” said Ken Paulson, president of the Newseum Institute’s First Amendment Center, the dean of the College of Mass Communication at Middle Tennessee State University and former editor-in-chief of USA Today. “We have a lot of variables here, but if they reported accurately, then there is no sense to a libel case. You would have to prove actual damage to someone’s reputation, it’s not enough to just have your feelings hurt –you’d actually have to incur real damages.”
Viswanathan stood by her paper, her staff and is looking to the brighter side.
“This is a huge freedom of speech issue and gives us an opportunity to exercise our constitutional rights. It gives us a chance to show what the values of The Excelsior are,” Viswanathan said.
Professionals in the field of first amendment rights and student press are adamant that threats of libel happen all the time, but the greyer cases rarely make it to a courtroom, especially when it depends on “he-says, she-says,” as is the case here.
The possibility of libel in the original article was that idea that the story portrays the ZOA in a way that is provably damaging to their reputation, but as noted by Frank D. LoMonte, executive director of the Student Press Organization, “the student association publicly blaming the ZOA for a budget controversy is itself a newsworthy matter, and repeating the fact of those accusations being made is not the same thing as vouching for the veracity of the accusations.”
Another point made by LoMonte, was that the wording of the article was more a matter of characterization than true-or-false fact.
“The one statement that exists in the grayest area legally is the quote indicating that the ZOA ‘provided false testimony,’” said LoMonte, as he recollected a Supreme Court case in 1990, the Milkovich case, which involved a comparable statement accusing a high school coach of giving false testimony, and that statement was found to be a factual assertion capable of being proven defamatory. “That statement is the one on which there could legally be vulnerability if the ZOA were able to meet the burden of demonstrating that its testimony was not false.”
The current status of this dispute is still undecided and on-going, as there has not been a response from the ZOA since their last, after professors and faculty of the journalism department wrote a letter to the ZOA asking to respect students first amendment rights, solve the issue amicably, and that they will stand by their students. The ZOA responded in asking for the same retraction and apology, in which upon receiving, the situation will end civilly.
“When we just put it to bed, it’ll go to bed. Or the other possibility is it blows up, we get the first amendment agencies like the ACLU, the student press organizations involved and we go to court,” Rodman said. “I just don’t think that’s going to happen in this case because it’s just not clear-cut. It’s not a sexy case to report on, the media won’t pick up on it, and there’s so many built in protections for the student press that I don’t think it’ll go anywhere.
I think a journalist always has to be brave and put it on the line. And very often, they’re putting everything on the line, including their organization, and it’s really gotta be worth it,” Rodman continued. “So our point of view as a college, as one of the biggest public universities in the world, is that we want to air all sides of everything… We’re so polarized as a society today, that nobody wants to compromise. Which is why we end up in situations like we have.”
With the conclusion of the dispute still in the air, The Excelsior and journalism faculty are standing behind the writer, while the future steps and action of the ZOA could quiet and pass or quite possibly resurface.
“This is a huge freedom of speech issue and gives us an opportunity to exercise our constitutional rights. It gives us a chance to show what the values of The Excelsior are,” Viswanathan said. ““And honestly, if you’re making people mad, then you’re doing something right. That’s the point of journalism – to not let people get away with this type of stuff. If people are getting mad, you might be doing something right. I stand by my paper. We still think these are the facts. This is what happened.”
After multiple attempts, the ZoA could not be reached for comment.