“Yes, I’m with … Hamas and Hezbollah and Islamic Jihad but up to a Point” Visiting Prof’s Suit Against Columbia Dismissed

Some excerpts from Judge Kathleen Waterman-Marshall’s longish decision filed Monday in Abdou v. Columbia Univ. (an appeal appears imminent):

Plaintiff Mohamed Abdou … is a North African-Egyptian Muslim scholar in the field of Cultural Studies, who was employed as a visiting professor at Columbia for the Spring 2024 academic term; his employment term end date was May 31, 2024. On April 17, 2024, Dr. Shafik, the former Columbia President, testified before the U.S. House Committee on Education and the Workforce … During the House Committee hearing, members of Congress questioned university presidents, including Dr. Shafik, about pro-Palestinian activism on campuses…. According to the complaint:

During the hearing, [Rep. Elise] Stefanik referenced pro-Palestinian tweets posted by [Professor Abdou] on X, and asked [Dr.] Shafik whether [Professor Abdou] will face consequences for his First Amendment protected speech, which occurred wholly outside the University setting.

Specifically, [Dr.] Shafik stated, “he will never work at Columbia again,” referring to [Professor Abdou], and further stated, “he has been terminated and not just terminated, but his files will show that he will never work at Columbia again.… [H]e is grading his students’ papers and will never teach at Columbia again and that will be on his permanent record.”

The complaint alleges that Dr. Shafik’s statement “was in direct violation of Columbia’s own process for faculty suspension and dismissal as listed in the University Statutes”; and that, following Dr. Shafik’s testimony at the hearing, Professor Abdou has been subjected to “harassment, death threats, and racially motivated hate mail”. The complaint also alleges that Shai Davidai …, a business professor at Columbia, doxed Professor Abdou, targeted him to receive threats by third persons, and otherwise harassed him:

[Professor] Davidai, in targeting and doxxing [Professor Abdou], intends to encourage his social media followers to target [Professor Abdou] with threats of murder and violence against him, to obtain harassment against Columbia administrators, including [Dr.] Shafik, and pressure [Professor Abdou] and administrators to resign.

[Professor] Davidai weaponizes the false assertion that all criticism of Israel is antisemitic to target [Professor Abdou] and other pro-Palestine advocates, including Columbia students.

The complaint further alleges that:

[Professor] Davidai has posted on social media that “Professors like Dr. Abdou are extremists whose only role at @Columbia is to radicalize students”, with the intention of inviting his followers to target, harass, and threaten [Professor Abdou], which they have done.

[Professor] Davidai accused [Professor Abdou] of “indoctrination” and of [Professor Abdou]’s department, the Middle East Institute at Columbia, of being “a real who’s-who of the most rabid antisemites at @Columbia.”

[Professor] Davidai referred to [Professor Abdou] on social media as “Dr. Mohamed ‘praise to Hamas’ Abdou,” further attempting to garner and direct hate against [Professor Abdou] all because of [Professor Abdou]’s criticisms of Israel.

Here’s the court’s analysis of Abdou’s defamation claim:

The complaint references two specific complained of statements by Dr. Shafik regarding Professor Abdou: “he will never work at Columbia again” and “he has been terminated and not just terminated, but his files will show that he will never work at Columbia again.… he is grading his students’ papers and will never teach at Columbia against and that will be on his permanent record.” Professor Abdou contends that these statements falsely assert he is an antisemite.

However, the complaint does not contain an express statement by Dr. Shafik that Professor Abdou is an antisemite, or even words from which it could be inferred that Professor Abdou is an antisemite. The complaint sets forth only Dr. Shafik’s statement that Professor Abdou has been terminated from his position at Columbia and that he will never work at the university again. Both of these statements are non-actionable true statements of fact. Consequently, because the statements are true, the complaint does not set forth any defamatory statements and dismissal of the defamation cause of action is warranted.

In an effort to avoid dismissal of the defamation claim, Professor Abdou’s opposition papers supplement the complaint by citing Dr. Shafik’s agreement with Congressperson Stefanik’s apparent opinion that Professor Abdou’s social media posts stating that he is “with Hamas and Hezbollah and Islamic Jihad” are repugnant. Specifically, Professor Abdou points to Dr. Shafik’s statement that “I share with you, your repugnance at those remarks. I completely understand that. On my watch faculty who make remarks that cross the line, in terms of antisemitism, there will be consequences for that” as defamatory….

[T]he supplement regarding Dr. Shafik’s “repugnance” at Professor Abdou’s social media posts amounts to, at best, an expression of Dr. Shafik’s opinion, not an assertion of fact. Statements of opinions are “deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation.” Similarly, Dr. Shafik’s statement that “[o]n my watch faculty who make remarks that cross the line, in terms of antisemitism, there will be consequences for that,” viewed in the full context of the communication and surrounding circumstances “signals… that what is being read or heard is likely to be opinion, not fact.”

Notably, this statement does not identify Professor Abdou as having “cross[ed] the line”; however, to the extent that the statement may be understood to implicitly refer to Professor Abdou, the statement would appear to the reasonable listener as an opinion, and not fact, much like the non-actionable statements of opinion in Mann, in which the plaintiff was described in a newspaper article published during a “heated local election” “as a ‘political hatchet Mann’ and ‘one of the biggest powers behind the throne’ in the Town of Rye government.

While the Court takes seriously claims that a party’s career has been negatively impacted, Professor Abdou’s complaint, even as supplemented, does not state a cause of action for defamation. The House Committee hearing transcript makes clear that Dr. Shafik’s opinion statements were in response to Professor Abdou’s specific social media posts highlighted by Congressperson Stefanik, the content of which Professor Abdou did not dispute….

The court also rejected Abdou’s discrimination and harassment claims, because they hadn’t sufficiently alleged action “based upon Professor Abdou’s perceived race, creed, color, national origin, age, sex, gender, disability, marital status, partnership status, sexual orientation, uniformed service, height, weight, or immigration or citizenship status, as is necessary to maintain an action under the New York State and City Human Rights Law”:

Professor Abdou’s complaint alleges that he suffered discrimination and harassment by Professor Davidai because of his criticism of Israel, that defendants had actual notice of the discrimination and harassment, and that defendants failed to take steps to control or remediate the situation causing a hostile work environment. On this motion, Professor Abdou alleges that he has sufficiently alleged discrimination based upon his national origin and ethnicity because he observed Dr. Shafik agree “with a racist, stereotypical evaluation of him” at the House Committee hearing, and defendants failed to take any protective measures regarding the alleged threats and hate mail that ensued, creating a hostile work environment…..

Professor Abdou’s allegations of a hostile work environment and discrimination based upon Professor Davidai’s conduct fail to plead the required discriminatory animus. The complaint alleges that Professors Abdou and Davidai have divergent views on issues surrounding Hamas, Israel, and Palestine, and that Professor Davidai publicly targeted Professor Abdou, inviting others to direct hostility towards Professor Abdou, based upon his views. However, the complaint does not allege that Professor Davidai’s conduct was based upon based upon Professor Abdou’s perceived race or religion and instead is solely based upon Professor Abdou’s criticism of Israel; indeed, the complaint alleges Davidai targeted all critics of Israel, including Jewish critics….

[Professor Abdou] contends that the Congressional transcript is “chock full of racist stereotypes” and that Dr. Shafik “leaned into and endorsed this racism.” However, Professor Abdou does not identify any portions of the Congressional transcript attributable to Dr. Shafik; instead, he identifies statements made by various legislators. The transcript shows that Dr. Shafik expressed disapproval of Professor Abdou’s statements in support of foreign terrorist organizations and stated that he would not work at Columbia again, but Dr. Shafik’s testimony does not contain an endorsement of racism, as Professor Abdou contends:

Rep. [Stefanik]: But I’m talking about the faculty members who are supporting terror, and it’s not just that case. Let me bring your attention to Mohammad Abdou who was hired after the October 7th terrorist attack against Israel. He on October 11th, posted, “Yes. I’m with Hamas and Hezbollah and Islamic Jihad.” He also decried false reports accusing Arabs and Muslims of decapitating the heads of children and being rapists.

We know that there were decapitations of babies, of innocent Israeli citizens, of seniors, of women, there were rapes, and yet Columbia hired this individual as a professor. How did that hiring process work? Were you aware of those statements before the hiring?

Dr. Shafik: I share with you, your repugnance at those remarks. I completely understand that. On my watch faculty who make remarks that cross the line, in terms of antisemitism, there will be consequences for that….

Dr. Shafik: He will never work at Columbia again. Rep. [Stefanik]: So he has been terminated?

Dr. Shafik: He has been terminated. He has—not just terminated, but his files will show that he will never work at Columbia again.

Professor Abdou provides no authority which stands for the proposition that expressing disapproval of a foreign terrorist organization in a Congressional hearing amounts to discrimination or creates a hostile work environment under the New York State and City Human Rights Law. The cases he relies on are readily distinguishable, involving sexually explicit emails and statements, physical inappropriate touching of an employee, mocking an Arabic greeting while eating bacon, and comments about Arabic and Islamic holidays when denying time off requests….

The court also rejected Abdou’s claim that the university had breached its contract by failing to provide him a non-renewal notice; here’s part of the court’s analysis on that:

It is undisputed that he was a visiting professor for a single academic term and Columbia’s Faculty Handbook provides that professors appointed for a single term are not entitled to non-renewal notices:

Some full-time instructional officers are appointed for a single term. Faculty with these appointments are informed in their offer letters of the date on which their appointments will end. They, therefore, do not need additional notice according to the schedule described above….

The quote in the title to this post is drawn from what appears to be Abdou’s post, as linked to in a Washington Free Beacon article, see here (this is quoted by the Daily Mail [England] and the Times of Israel, and in part in Rep. Elise Stefanek’s statement and in the trial court record in this case).

Gabrielle Tenzer, Zachary Piaker, Matthew Craig, and Ian Robertson (Hecker Fink LLP) represent Columbia. Thanks to the Media Law Resource Center (MLRC) MediaLawDaily for the pointer.