This afternoon, Oberlin College was hit by a jury with $33 million in punitive damages added on to the June 7 judgment of $11.2 million for defamation. (The punitive damages will probably be reduced to $22.4 million under state law, but perhaps $10 million in plaintiff legal fees will also be assessed to Oberlin.) This massive ruling of over $40 million is a dangerous attack on freedom of speech and academic freedom. Although I can hope the judgment is overturned on appeal because the case does not come remotely close to meeting the legal standard of defamation, it is an alarming example of the attacks on higher education and free speech in America
The story began on November 9, 2016, when an Oberlin College student went into Gibson’s Bakery, tried unsuccessfully to buy wine with a fake ID, and then shoplifted it. When Allyn Gibson physically stopped him and put him in a choke hold, the student (and two other Oberlin students with him) began punching Gibson, and the three students (all African-American) were arrested. Some Oberlin students claimed Gibson’s bakery was racist, held a protest of 200 people at the store for two days, and called for a boycott, which the Student Senate endorsed in a resolution. Gibson’s Bakery never sued any of the students who called them racist, preferring instead to go after the deep pockets of Oberlin College on the questionable grounds that they supported the accusations of racism.
So why did the jury rule against Oberlin? The primary reason is that Oberlin students behaved disgracefully, only to be exceeded by the incredibly stupid and repulsive actions and comments by Oberlin administrators. Protesters demanded a boycott over a case where the Oberlin students were clearly guilty (and later pleaded guilty) and there was no evidence of racial discrimination. They made accusations of past racism, but never presented any convincing evidence publicly. Oberlin’s administrators were even worse. They hurt Gibson’s business by refusing to stand up on their behalf and by boycotting the bakery for a time. They tried to intimidate Gibson’s into dropping charges against the Oberlin students by threatening to continue their boycott, and even asked the bakery to call the college rather than the police when students shoplifted in the future. And Oberlin’s administrators sent each other very dumb messages that alienated the judge and jury so much that the actual legal regulations about defamation.
As conservative legal scholar William Jacobson wrote in the Wall Street Journal, “The jury held accountable an unhinged progressive activist college that lost concern for the lives of working people in its community.” That certainly is what the jury did. But it’s not what the law allows. The law of defamation doesn’t let the government seize millions upon millions of dollars simply because a college is rich or unhinged or progressive or out of touch.
There are many reasons why the jury’s verdict should be overturned on appeal.
First, It is not defamation to call someone racist because it is a statement of opinion. And the statement about “ a LONG ACCOUNT of RACIAL PROFILING and DISCRIMINATION” is also a statement of opinion about a long period of time, but still opinion. If merely calling someone bigoted is considered defamatory if a jury disagrees, then a vast number of people could be subject to libel suits for their political speech. One can imagine the level of censorship required if every time a student, professor, or speaker said that some individual or company was racist, sexist, homophobic, anti-religious, stupid, or anything else negative, the college could be sued unless they took action to silence this speech. Statements about racism are an expression of opinion, and opinion is protected under defamation law.
Evan Gertsmann argued at Forbes that calling the bakery racist cannot be an opinion because “It is difficult to think of a more harmful accusation against a business today than accusations of racism and the court rightly rejected that argument.”
But that makes no sense. There is no connection between the level of harm in a statement and whether it is an opinion. Some opinions can cause serious harm, and some facts cause no harm. The test of whether something is an opinion depends on whether it’s an opinion, not the level of harm.
Gertsmann claimed that “calling Gibson’s racist and accusing it of engaging in racial profiling right after the incident with the three students is clearly accusing it of specific wrong-doing.” Once again, specificity and facts are two different categories. If the protesters claimed that arresting a black student was racist, that’s still their opinion about the facts in the case even though it’s an opinion about a specific event. If, hypothetically, the protesters had falsely claimed that the owner yelled racial slurs and said black people were banned from the store (which obviously never happened), that would be a fact assertion potentially subject to a defamation claim.
Second, Oberlin was wrongly banned by the judge from presenting evidence of racism at Gibson’s Bakery, which if true would have nullified any defamation claim. When Chris Jenkins, an associate dean for academic support and equity, testified, “I personally have had moments in the [Gibson’s] store where I didn’t feel comfortable …” according to Legal Insurrection, “At that the judge cut him off and told the jury to disregard.” The judge wouldn’t allow Oberlin to mention racial comments by Allyn Gibson on Facebook in 2012. According to Legal Insurrection, the judge didn’t want “students or administrators to use the witness stand to debate if Gibson’s was racist or not.” Considering that the alleged racism of Gibson’s Bakery was the basis of the defamation charge, it is bizarre for a judge to make the topic off-limits at the trial. By contrast, the judge openly allowed numerous witnesses to testify that Gibson’s was not racist.
Third, Gibson’s Bakery sued Oberlin on the theory that it was aiding and abetting defamation. Lee Plakas, the lawyer for the bakery, actually admitted that Oberlin didn’t commit the defamation, but “aided and abetted defamation, the same as one would in a crime.” Plakas told the jury, “If you’re an aider and abettor, whether it’s a crime or a civil wrong, then you have the same type of responsibility.” This is incorrect. There is no concept established in the law of “aiding and abetting defamation.” There is only defamation, which Oberlin clearly did not commit.
Allowing aiding and abetting defamation would be an incredibly repressive expansion of libel law. For example, under aiding and abetting defamation, someone alleging libel by a newspaper could sue not only the article author and the publisher, but also any retail outlet that sold a few copies of the paper. Allowing “aiding and abetting defamation” would be enormously destructive to freedom of the press in America.
The basis for that “aiding and abetting defamation” charge was incredibly weak. As Legal Insurrection reported, “There was testimony during the trial that Raimondo handed out at least one of the flyers and that the college facilitated the posting of the student resolution on campus.” Handing out a flyer to someone who asks what the protest is about is not aiding and abetting anything. And allowing a student senate resolution to be posted on campus is perfectly normal for any college. As Gertsmann noted, “The student senate is not controlled by the college and allowing the senate to post its resolution on college property is not tantamount to an official endorsement of that resolution. To hold otherwise would force colleges to proactively censor student governments.”
Legal Insurrection summarized the bakery’s legal argument this way: “The school did not initially ‘publish’ the material in question, but did help students distribute the defamatory material in various ways at and after the protest: punishing the business for not dropping the shoplifting charges against the three who plead guilty eventually, helping the students find “quiet space” during the protests and feeding them and buying them mittens, caving in to students who threatened to “stomp” on Gibson’s bakery items if they were still served in the cafeteria, and never putting out any statement that Gibson’s is not racist.” None of these things have anything to do with defamation, but they were used to smear Oberlin and create sympathy with the jury for Gibson’s Bakery. The notion that giving mittens to students is a form of defamation is incredible. And the idea that Oberlin was obligated to publicly
Oberlin lost this case in a classic example of town vs. gown. But being pissed off at the local college is not a valid legal doctrine for taking millions of dollars. The judge even allowed the testimony of 90-year-old Allyn W. Gibson, with a walker and a neck brace, who recounted how six months after the protests he heard a banging on his window, saw a car in the parking lot, and then fell down and broke his neck. This testimony was allowed because the judge had also admitted testimony by employees who said their tires were slashed and some people made nasty comments to them. None of this has any connection to a defamation claim against Oberlin, but it certainly created sympathy among the jurors for the bakery and anger at Oberlin.
The trial also created the expectation that Oberlin was guilty of defamation because they failed to denounce the students. A police officer, Victor Ortiz, testified, “I didn’t see anyone trying to calm the students down at all.” He added,“Didn’t see any of them instructing the students not to use curse words and didn’t hear any of them tell their students not to shout that Gibson’s is racist.” Of course, it would have an appalling act of censorship for a college to ban their students from uttering the word “racist” at an off-campus protest. But because Oberlin failed to denounce its own students, it was held guilty for what they did. David Gibson testified, “Without [Oberlin College] coming out and offering a message that we were not racist, it was going to go on forever. They caused this thing, and they needed to step up and do the right thing.”
Plakas said, “Would it have killed Oberlin College to stand up as an adult and say, ‘We got it wrong; our students got it wrong? We shouldn’t have rushed to judgment?’” Plakas declared in his closing argument, “If it wasn’t for the arrogance of this powerful institution we wouldn’t be here. We must care when powerful institutions don’t care enough. You can tell them loud and clear that their behavior has to change.”
Gibson’s Bakery won this case by depicting Oberlin College as an uncaring bully, but these arguments have no legal merit. Their lawyer used a repulsive and stupid email written by the inept Dean of Students Meredith Raimondo that said about a professor critical of Oberlin’s action, “I’d say unleash the students if I wasn’t convinced this needs to be put behind us.” Plakas asked during the trial, “Did the school unleash the students like a pack of wild dogs on the Gibsons and can’t admit they are wrong for doing that?”
This kind of imagery—black students as dumb wild dogs obeying the commands of Oberlin administrators—was at the heart of this case. Gibson’s Bakery promoted the idea that Oberlin was secretly controlling the students as part of a bizaree plot against the bakery (their initial complaint contended that “Oberlin College Covets Gibson’s Well-Situated Land”).
One lesson for colleges from the Oberlin ruling is that they need to eliminate all regulations on defamation in their campus codes of conduct. That may seem strange, but in this case one of the factors used against Oberlin was its campus policy. The Bakery’s complaint declared, “Oberlin College provided the Student Senate with assistance and encouragement even though the Student Senate’s actions violated the Student Code of Conduct, which prohibits defamation, libel, and slander and which classifies said conduct as constituting harassment.” The Bakery’s lawyer argued that because Oberlin banned defamation, it was obligated to take action against the student protesters to stop them from defaming the bakery. Oberlin’s student code of conduct does indeed list “Defamation, libel, or slander” as examples of harassment. Colleges need to remove defamation from student codes of conduct or risk greater liability.
Nothing the Oberlin students did was defamation, and certainly nothing Oberlin administrators did qualifies as defamation. The jury was clearly swayed by emotional appeals of a David vs. Goliath case. It’s true that Gibson’s Bakery suffered terrible economic harm from Oberlin and its students, and so far no one has presented any serious evidence of racism by the bakery. But not every injustice in the world should be cured with a lawsuit, especially not a defamation lawsuit. A private individual, and a private college, can boycott anyone they want to, even if they are morally wrong to do so. Allowing colleges to be sued for the offensive language of their students creates a terrible precedent that will not only harm colleges but give a legal rationale for massive censorship. Gibson’s Bakery also argued that Oberlin was liable because faculty were present at the protest and one wrote something critical about the bakery, which puts academic freedom in jeopardy.
Ironically, a Fox News story about the libel verdict actually concluded by discussing Donald Trump’s Executive Order “that threatened to withhold funding from universities if they refused to protect students’ rights,” apparently unaware that Oberlin lost this libel suit because it failed to silence its students and infringe upon their rights.
And that’s the great danger of this ruling. Colleges will face legal liability for the opinions of their students and faculty, unless they decide to censor them. That’s why the Oberlin College defamation ruling is so threatening to free speech and academic freedom.
Crossposted from AcademeBlog.