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An Ohio jury has awarded Gibson’s Bakery $11 million in damages in its libel suit against Oberlin College. This week, that same jury could award punitive damages that would increase the total amount of damages to more than $30 million. This all stems from an incident in November 2016 when three African American Oberlin students entered Gibson’s and were suspected of trying to steal liquor. A physical altercation resulted. Although the students all eventually pled guilty, many Oberlin students believed that Gibson’s racially profiled those students and used excessive force against one of the students.
Things got heated quickly. The Oberlin Student Senate passed a resolution stating: “Gibson’s has a history of racial profiling and discriminatory treatment of students and residents alike.” Students protested outside of the store. As described by Inside Higher Education: “students . . . organized a protest in which more than 100 people demonstrated outside the bakery. Students carried signs accusing the bakery owners of white supremacy or simply saying ‘F-ck Gibson’s.’ Protesters chanted ‘Gibson’s is racist’ and handed out pamphlets urging customers not to buy from the bakery and accused the bakery of a history of racism.”
Gibson’s filed a complaint against Oberlin seeking millions of dollars in damages for libel. (It also asked for damages under more esoteric legal theories such as ‘tortious interference with contract’ that this post will not be discussing.)
Some of Oberlin’s defenses are dodgy. It claims, for example, that calling Gibson’s “racist” or claiming that Gibson’s has a long history of racial profiling are mere opinions and, therefore, can’t possibly be libelous. 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. Perhaps in another context that claim might make sense, but 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.
However, Oberlin’s most important defense is far more meritorious. (I should disclose here that I am an Oberlin alum.) The college should not be held legally responsible for statements made by students or faculty who are not speaking for the college as a whole. It is extremely dangerous to expect a college to censor its students, staff or faculty, especially about an important issue such as racism. Punishing the college with huge economic sanctions for a student protest or a student senate resolution does exactly that. This verdict, if it isn’t reversed by an appellate court, provides a powerful incentive for universities to punish and restrict controversial speech.
Gibson’s attorneys made numerous attempts to show that statements by students and professors somehow represent statements by Oberlin itself. None of these arguments are convincing. 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.
Gibson’s attorneys also made much of the fact that some Oberlin administrators attended the protests. But, of course, Oberlin would want to have a presence at the protests to ensure both student safety and that students were respecting the law. This verdict tells colleges that if they send administrators to watch out for student safety they can be sued for millions of dollars. That is not in anybody’s best interests.
In fact, Oberlin did issue what could be described as an official statement about the incident. Then-President Marvin Krislov signed a public letter shortly after the incident stating: “Regarding the incident at Gibson’s, we are deeply troubled because we have heard from students that there is more to the story than what has been generally reported. We will commit every resource to determining the full and true narrative, including exploring whether this is a pattern and not an isolated incident. We are dedicated to a campus and community that treats all faculty, staff and students fairly and without discrimination. We expect that our community businesses and friends share the same values and commitments.”
There is no reasonable interpretation of this official letter as a libelous statement. Holding Oberlin College legally responsible for other statements such as flyers and resolutions written by students creates a powerful incentive for censorship.
Other statements that were used against Oberlin are statements by individual faculty members, including a piece written by a retired professor. Allowing this verdict is a clear threat to academic freedom since it tells colleges that they can be punished for allowing faculty to express controversial ideas.
None of this is to say that Oberlin or its students acted well. All three of the students at the center of the controversy pled guilty and conceded at their sentencing hearing that they were not racially profiled. The protests against Gibson’s were organized before there was any reasonable opportunity to ascertain the facts and were an ill-advised rush to judgment.
Also, various Oberlin administrators demonstrated a lack of maturity and judgment in how they discussed the situation. For example, an email from Oberlin College Vice President of Communications Ben Jones read: “All these idiots complaining about the college hurting a ‘small local business’ are conveniently leaving out their massive (relative to the town) conglomerate and price gouging on rents and parking and the predatory behavior towards most other local business. (Expletive) ’em.” Meredith Raimondo, The Oberlin Vice President and Dean of students, texted other administrators about a faculty member who was critical of how the college handled the situation, writing, “(Expletive) him, I’d say unleash the students if I wasn’t convinced this needs to be put behind us.”
So, Oberlin is far from perfect. But to punish a college for not reining in its students, administrators, and faculty even when they are not speaking on the college’s behalf represents an extraordinary threat to academic freedom and to freedom of speech.
The danger is especially great here because this multi-million-dollar verdict is clearly part of the larger culture war going on in America. The jury pool, in this case, is from a community that is significantly more conservative than the college is. Fox News coverage gleefully tied the situation to the “nationwide controversy surrounding universities and political correctness” and contained a link to a story about canceling Columbus Day and quoted President Trump’s denunciation of “speech codes, safe spaces and trigger warnings”.
Libel law has a long history of being used as a weapon in culture wars, especially where race is involved. The leading Supreme Court libel case, New Times v. Sullivan, involved a huge verdict by an Alabama jury against the New York Times based upon some minor mistakes in an ad denouncing police treatment of Martin Luther King. The Court recognized that local juries could use libel awards to punish newspapers for views that were unpopular in the local community. The same is certainly true for libel suits against colleges that are politically out of step with their local communities. The libel law, in this case, is especially dangerous because it allows for “per se” damages—the awarding of damages without proof of actual harm. That is in addition to punitive damages that are intended to punish the defendant rather than to compensate the plaintiff for any actual loss.
This case isn’t a situation of good guys versus bad guys. The protestors seemed to prejudge the situation and a number of Oberlin administrators showed poor judgment. Nevertheless, this verdict represents a very real threat to the future and mission of American universities, which are already under siege from numerous quarters. This will be even more so if punitive damages are piled on later this week. Hopefully, the appellate courts will see this danger and reverse this decision.
