[grellas]

A bit more factual context:

1. The student "protests" erupted the day after the 2016 election results came in, with a corresponding politically inflammatory element at work in the background.

2. The underlying incident involved an underaged black student who attempted to buy a bottle of wine, was refused, and was then found to have 2 other bottles under his coat as he walked out. When the owner's son chased him out, an altercation ensued and, as police arrived, they found the owner's son on the ground being hit and kicked by three persons, including 2 female friends of the shoplifter.

3. I use shoplifter, instead of "alleged shoplifter," because a guilty plea was entered admitting to the crime and also acknowledging that racial profiling had nothing to do with the incident.

4. Protests immediately erupted and were so volatile that the local police chief said he felt he had to call in outside help from a riot squad.

5. The students who did the protests claimed that Gibson's bakery not only had engaged in racial profiling in the particular incident but also that it was a long-time racist presence in the local business community. (Gibson's had been founded in 1880 and was strictly a family owned business, with the business supporting 3 generations of the family at the time of the incident).

6. The Oberlin dean of students (Merideth Raimondo) appears to have joined in the protests directly, shouting through a bullhorn and handing out fliers calling Gibson's racist. She claimed she used the bullhorn for 1 minute only and only to tell the students to observe safety precautions. Multiple other witnesses at the trial claimed she did so for a half hour and that she was a direct participant in the events. The jury obviously did not believe her. Also, she denied that she had handed out any fliers, was contradicted by a local reporter who said she had handed one to him, called that reporter a liar, and (at trial, once under oath) later admitted that he was telling the truth that she had handed him a flier knowing him to be a reporter.

7. The college immediately joined in the affair by terminating its long-term contract with Gibson's. A couple of months later, it reinstated that contract. Then, when the Gibson family filed suit, it terminated the contract permanently.

8. The college took the position that the matter would be dropped if Gibson's dropped the shoplifting charge and if it committed in the future to bring all incidents involving students directly to the college before it got the police involved. Gibson's refused to comply with this condition.

9. Gibson's in turn offered to forego any and all legal claims if the college sent out a mass communication stating that Gibson's had not engaged in racist activity and had no history of being racist. The college declined to do this.

10. Gibson's took a huge financial hit as a result of all this, barely managing to stay in business. It had to lay off all of its 12 employees and the family owners continued to operate the business without salary for 2 years.

11. Gibson's sued the college and its dean of students alleging libel, intentional infliction of emotional distress, and interference with business relations.

12. Throughout the trial, the college took the position that it had done nothing wrong, was only protecting the students' right to free speech, and had no responsibility for what happened. It also took the position that Gibson's was worth no more than $35,000 in total value as a business and that such amount should be the maximum awarded in any damages award.

13. The jury award $11.2 million in compensatory damages, $33 million in punitive damages, and also said that Oberlin had to pay Gibson's attorneys' fees. Under state law, there is a 2x cap on punitive damages (2x times the amount of compensatory damages awarded) and thus the punitive award will be set at $22 million. The judge is still determining the attorneys' fees question. All in all, though, the jury basically slammed Oberlin to the max and also awarded major damages against the dean of students.

14. Oberlin sent a mass email to its alumni association essentially saying that the jury disregarded the clear evidence showing it had done nothing wrong and vowing to fight this through appeal. It also formally announced that it will be filing an appeal.

15. Oberlin has had a long-time "townie" vs. "gownie" culture but this far transcends the small tensions that have historically existed.

William Jacobsen at Legal Insurrection has been on this case in great depth from inception, believing it is a case of major significance concerning college activism run amok. Here is a link to his reporting on the original verdict that contains a ton of links to the prior coverage: https://legalinsurrection.com/2019/06/verdict-jury-awards-gi...

The article here is by Jonathan Turley, a distinguished liberal law scholar, who is pretty critical of Oberlin's handling of the case, as I think most people are.

[nhebb]

> 14. Oberlin sent a mass email to its alumni association essentially saying that the jury disregarded the clear evidence showing it had done nothing wrong ...

In a move of awesome stupidity, that email was sent out while the case was still in court - just prior to the jury deliberating on the punitive damages.

[tptacek]

This is a great summary, and I broadly agree with Jacobsen's take, but also took the time to read the primary source documents that he and others linked to. So, some finesse points:

2-3: I don't know that it's been well established that the student who sparked this incident and later pled out to shoplifting went into the store with the intent to steal. The other narrative presented is that he went in with a fake ID (so clearly had purchasing intent), the ID was spotted, the clerk attempted to confiscate it, and that's when things blew up. It appears undisputed that the student fled the store and was chased by Allyn Gibson, unfortunately resulting in Gibson getting beat down by the student and two friends --- the result was a felony robbery charge, at which point the student had immense incentive to plead out to anything the court would allow him to.

4: It's useful to know that there's a history of problematic interactions between Oberlin (the school) and the Oberlin Police (an unrelated department of the town in which Oberlin resides). That OPD felt the need to escalate a situation isn't dispositive. What we do seem to know is that, excepting an early incident where protesters entered Gibsons Bakery to protest indoors (and then left), the protests were not violent.

7: Oberlin didn't have a contract with Gibsons. They asked their cafeteria supplier to stop sourcing from Gibsons.

12: It's worth pointing out that the college didn't merely take the position that it had done nothing wrong, but also repeatedly in its own legal filings affirmatively supported the protesters claims --- apparently false --- that Allyn Gibson had "violently assaults" an "unarmed student".

Finally: I too have found Legal Insurrection's coverage of this case valuable, but anyone reading it should go in knowing that unlike Turley, L.I. is not "liberal", but rather full-throated conservative. It's always good to keep the agendas of news sources in mind, and that of course goes for L.I. the same way it would for DailyKos or PopeHat.

I think if Oberlin had been smart enough to redirect protest energy towards the Oberlin Police rather than to a private business, this all would have worked out better (and also, not for nothing, have been more just). As it stands, though, I'm shocked Raimondo still has a job; Oberlin's handling of the case was far more clownish than one could perceive from this summary.

[grellas]

Excellent additions - thanks for supplementing/clarifying!

Another note or two:

1. Damages might be reduced on appeal but, if not, this will really sting for Oberlin. Why?

2. Its insurer apparently is denying coverage because the wrongs committed were intentional and that removes them from coverage.

3. The legal fee award approved by the jury is likely tied to a contingent fee arrangement and will likely add as much as $10 million to the final price tag.

Bottom line for the risk to Oberlin: $11.4 million compensatory damages; $22.8 million punitive damages; $10 million attorneys' fees = $44.2 million judgment, an astounding number for something the college could easily have quelled at or near inception for almost nothing. Again, this could be reversed or modified on appeal but who in the world would want to be fighting from that position?

[tptacek]

It's an insane situation. I have a generally high opinion of Oberlin as a school (my daughter was accepted there, and would have attended had she not wanted to remain closer to home; several friendly acquaintances are faculty there). I also --- broadly and with varying levels of intensity --- share the prevailing politics of its community. But the school's conduct here seems so simultaneously mendacious and clown-shoed that I can't help but think something's fundamentally screwed up about how it's run. I'm glad Oberlin wasn't closer to Chicago to tempt my daughter last year. I hope they figure stuff out.

[333c]

Another facet of this story that doesn't seem to be discussed much is that the college is having financial struggles as it is. The grievous mishandling of the event is not helping the financial situation. For more on that, see:

https://www.oberlin.edu/sites/default/files/content/about-ob...

https://www.oberlin.edu/about-oberlin/leadership-and-adminis...

(archives of the above)

https://web.archive.org/20190619230018/https://www.oberlin.e...

https://web.archive.org/20190619230022/https://www.oberlin.e...

[odiroot]

How are these people not in jail for kicking a man on the ground?

On top of theft at that.

[analog31]

Possibly, a plea bargain. Plead guilty to X and we won't charge you with Y. It could also just be leniency towards a first offender, independent of the issue of the protests.

[Sacho]

From LI's reporting, if I understood correctly, the Gibsons' agreed to drop the assault charges if the accused students would make a statement that the Gibsons' were not racist.

[elicash]

Thanks for this. I hadn't dug deeply into this previously.

Reading this, I'm struck by how fragile our first amendment is that you can be sued for participating in a protest. It sounds like the only things that the university did "wrong" was end a contract and also one of their deans took active part in protesting.

Much of the glee seems to stem from the fact that the speech being expressed in the protest was dumb. I, for one, think dumb speech should be protected.

[zcid]

Multiple school officials were actively participating in the demonization of the business and using their authority to create economic sanctions on the same. I don't see how you can justify their behavior. Especially since Gibson's was an actual victim of a real crime unlike the narrative the school was trying to paint.

There was also a link to another article laying out the evidence of collusion by school administrators to do economic harm to the owners of the bakery. Do you defend that behavior as well?

[elicash]

I don't "justify" saying stupid things. I just care about freedom of speech.

There's another user who made the point that the facts of this case extend to a dean accusing the business of committing a criminal act. Based on those facts, I think there's a much better argument that you could be making rather than arguing that defending the right to say something is the same as defending the underlying stupid comment.

[UnpossibleJim]

Freedom of speech does does carry with it freedom from the repercussions of libel and lost wages due to those erroneous statements. Now, you can argue the validity of those laws and their impact on the freedom of speech, but they aren't protected under the free speech laws. They have very real specifications and aren't cart blanche to be an asshole without repercussion. Ignorance of the law has never been a defence, and I would hope a college would have understood that.

[elicash]

I think you misread what I wrote because the statements aren't in conflict with one another. I'm saying there are limitations on libel as a result of the First Amendment, not that you can't have any libel laws at all.

[UnpossibleJim]

Of course, but when you use your position of authority (as a professor would have) as a bully pulpit, to have a call to action (like boycott), it can be argued that damages are justified. I'm actually very pro free speech, and I think the damages in this case are egregious, but there was very much a call to action from a very influential person on a group of people who had limited capabilities (though, not legally, maybe). The precedent is more similar to yelling fire in a crowded movie theater and being responsible for the outcome rather than voicing your political opinions in a town square.... Though, I will admit, when I wrote this first comment I hadn't read far enough down in this thread =)

[rayiner]

Defamation has long been deemed to be speech not protected by the first amendment. Because of the risk to freedom of expression, such claims have been limited in numerous ways, and are exceedingly difficult to win. But where a plaintiff does manage to overcome those hurdles, it is not an indicator of the fragility of the first amendment for the defamation claim to actually succeed. It’s simply applying well defined outer limits to freedom of expression, no different than ones for fraud, false advertising, and other malicious conduct that incidentally involves speech.

Two points @grellas mentioned are key.

First, this case involves falsehoods. Factually untrue assertions are generally outside the scope of protected speech: http://law2.umkc.edu/faculty/projects/ftrials/conlaw/lying.h.... (Otherwise, the first amendment would swallow claims for fraud, false advertising, etc). This case, moreover, doesn’t fit the scenarios where false statements can be protected expression, such as hyperbole or satire.

Second, the speech was against a private party. The first amendment restrictions on defamation claims are less stringent when it comes to private parties than to the government, politicians, or public figures. In particular, where defamatory speech turns out to be false, it might still be protected by the first amendment if it was directed to a public figure and the false statements were not made recklessly or knowingly. But if a private party is involved, that additional layer of protection doesn’t exist. (The theory being that there is a greater interest on making statements about public figures, where sometimes you might get the facts wrong, than with private figures.)

I’m a first amendment extremist, but a defamation claim here doesn’t strike me as problematic any more than a prosecution for fraud. There is no legitimate expressive value in spreading demonstrable falsehoods about a private party. Nor is there a slippery slope. The key elements of private party versus public figure, and demonstrably false versus possibly true statements are bright line limits that have long served us well.

[tptacek]

The page you've cited here appears to claim the opposite of what you're claiming, itself citing multiple cases in which the Supreme Court found factually untrue statements firmly inside the scope of protected speech. The counterexamples you're providing are motivated untrue assertions in which speech is part of a broader pattern of action (in these cases, to unjustly enrich the speaker; in others, to unjustly damage someone disfavored by the speaker).

Not that I disagree at all with what you're saying about defamation! But the idea that lies are unprotected speech seems like a very dangerous slippery slope. Like, Singapore would claim to support "free speech" with that (gigantic) exception.

[elicash]

Thank you for being the first person to agree with my fundamental point that there are actual implications to the first amendment when it comes to libel laws.

I'd love to hear any of the actual false statements ISSUED BY THE UNIVERSITY OR ITS STAFF. I relied on the so far uncontested statement of facts offered by OP. If those facts are wrong I'd be thrilled to revisit my position.

[rayiner]

A university dean admitted to passing out a flyer that falsely stated that the Oberlin student had been assaulted: https://legalinsurrection.com/2019/05/gibsons-bakery-v-oberl.... A police officer testified that the Oberlin students had assaulted the bakery employee, not the other way around. The flyer also stated that the bakery had a long history of racial profiling. But at trial the dean admitted that she didn’t know whether that was true. Numerous witnesses testified it was false.

A high ranking university employee handed out a flyer containing damaging assertions of fact, with the intent that people believe and act upon those assertions, and at trial offered nothing to suggest she had even a good faith belief that those assertions were true. That’s not an exercise of free expression.

[elicash]

The assault (a crime!) claim on the flier is REALLY bad for the college. It makes me feel much better about the ruling, as much as I still disagree it's with a LOT less force now.

(False accusations of racism or racial profiling, on the other hand, should absolutely be protected.)

Edit: One thing I'd add. Even though our positions on this individual case are in opposition, we actually agree about the First Amendment issues far more than you do with people who are criticizing me for thinking the Constitution has any implications on libel law.

[rayiner]

What about false accusations of pedophilia? Why is one kind of falsehood protected and another not?

I think what you’re really concerned about is when people, in good faith, level an accusation of racism or racial profiling that turns out to be debatable or wrong. They shouldn’t be prosecuted. But that’s not what happened here. It’s not a high hurdle to show that an accusation of racism or racial profiling is not at least colorably true. Had the university done so, it likely would have gotten off the hook. They could have, for example, pointed to a suspicious pattern of calling the police. The university didn’t even try to do that.

I think the law is correct here. It’s one thing to protect expression made in good faith that turns out to be wrong. That’s important to avoid chilling effects. It’s another thing entirely to protect expression where there is not even a good faith basis to believe that the allegations are true.

[djakjxnanjak]

Whether someone is a victim of assault or rightfully practiced self-defense is often a difficult question dependent on the states of mind of the people involved in a volatile situation, remembered through the veil of faulty human memories. Details like who used force first are pretty much impossible to determine without a video recording. Of course, police officers are as fallible as anyone else. Defamation requires a willful disregard for truth, and I have a hard time believing that “they committed assault” would be defamation when “they got in a fight” is accurate.

For what it’s worth, I consider myself a liberal, and I went to a liberal arts college cut from the same cloth as Oberlin and wrote anonymous posts debating what I perceived as the excesses of liberal campus activists.

[Fins]

Given that students in question plead guilty, it seems quite plausible that "willful disregard for the truth" is exactly what happened here.

[rayiner]

There was no allegation that the Oberlin student acted in self-defense. As to the guilty plea, there are indeed lots of people who plead guilty to crimes they did not commit. It’s a country of 300 million people—in absolute terms, there are lots of people who do any given thing. But in percentage terms, any given guilty plea is likely the result of overwhelming evidence of guilt.

[adt2bt]

I love how this was quite literally just litigated yet you're here assuming the entire legal process for this case was a sham.

[elicash]

1. Legal process isn't necessarily over

2. I did not call it any of it a sham, let alone "the entire legal process." No need to make things up.

3. People should be encouraged to think for themselves!

[deogeo]

> Thank you for being the first person to agree with my fundamental point that there are actual implications to the first amendment when it comes to libel laws.

He's not the first - the reason I didn't bring it up in my reply was that I agree with it. Libel (and true threats, and incitement to imminent lawless action) absolutely are limits on the first amendment and free speech. They're limits I, even as a free speech advocate/extremist, happen to agree with, but they are limits.

[elicash]

It's funny. We're disagreeing so strongly here but we fundamentally are so much in closer position here than the people downvoting me and most of the folks disagreeing with me because I even brought up the First Amendment to begin with.

[deogeo]

There's a line between dumb speech and libel. The faculty members were informed of the facts of the case, yet continued their counterfactual accusations of the bakery, and used the college to put severe economic pressure on the bakery.

If that doesn't qualify as libel, what does? That it was done as part of a protest is orthogonal.

[elicash]

I'm going based on OPs description, which nobody on either side of the debate seems to object to. A different list of facts could convince me of something different, certainly.

What were the libelous comments by the college, specifically? I looked at the link provided and didn't see any actual comments from the flyer or dean of student's speech.

[deogeo]

Reading the article, several of the college faculty claimed the bakery's actions were racist, for which they had no evidence, and plenty of evidence against.

"Students, professors and administrators held protests, charging that the bakery was racist and had profiled the three students."

Literal comments or the flyer would be better, I agree, but it doesn't look like anyone is objecting to this description of the content of the protests.

[elicash]

I don't think simply calling somebody "racist" should EVER be libel. Even when inaccurate. But hey, that's me and I'm a free speech supporter.

[hollerith]

>I don't think simply calling somebody "racist" should EVER be libel. Even when inaccurate.

Do you also believe that calling somebody a "serial sexual harrasser" should never be libel, even when inaccurate?

"Sexual predator"?

[inflatableDodo]

>I don't think simply calling somebody "racist" should EVER be libel. Even when inaccurate.

So, what is your definition for libel? As it doesn't appear to be the same one in common usage. I am massively in favour of free speech, but I suspect even Voltaire would want some method of restitution to be available should people be spreading lies about him around town.

[deogeo]

What about calling someone a pedophile? Should that also not be libel?

And before you claim it's different because being a pedophile is a crime - it's not a crime. Acting on it is. Just how being racist isn't a crime, but refusing to serve customers based on race is.

[mullingitover]

> I don't think simply calling somebody "racist" should EVER be libel. Even when inaccurate.

You're a racist.

Just exercising free speech over here, am I doing this right?

[bradleyjg]

You cited NYT v Sullivan in several places in this thread. What facts lead to you weigh to come to the conclusion that the Gibsons are public figures?

Maybe you have some intellectual humility and give deference to the judge and jury that heard all the facts rather than declaring them to be wrong based on a summary of a summary.

[elicash]

> public figures

The college argued they were (limited purpose) public figures. The judge disagreed, clearly. I was making a point that to argue there are no First Amendment implications to libel laws is so far from established interpretations of the Constitution that it should give people who care about free expression pause.

> based on a summary of a summary

Are you disputing the summary? If so, which parts? I don't agree that judges and juries are always right and we should not form our own opinions, if that's what you're implying.

Do you think simply calling somebody racist, even when wrong, should be protected by the first amendment? My bet is that you do. And so this comes down to the set of facts. If you have contrary sets of facts, let's hear them!

[bradleyjg]

The case file is available for public inspection at Lorain County Clerk of Courts, 225 Court Street, First Floor, Elyria, OH 44035.

HTH

[Wohlf]

You can't be sued for participating in a protest, the lawsuit against the dean was for libel and targeted harassment, particularly from a position of power.

[sidlls]

What does this have to do with the first amendment? It doesn't protect individuals from lawsuits by other individuals for civil issues.

[elicash]

There are limits to libel laws as a result of the First Amendment. I understand your confusion/question, but that's why I bring it up -- there's a lot of disagreement over how to interpret these speech protections and lots of people weigh the issues involved differently. From OP's description at least, it's a bad ruling for people who care deeply about freedom of expression.

Sadly, most people only care about scoring points against those they disagree with politically. Even at the cost of these freedoms.

[sidlls]

There's no confusion here. The amendment is a restriction on government, not individuals suing. Aside from that, not everyone who cares deeply about freedom of expression would agree that this ruling is bad in that context.

[elicash]

This is incorrect. The restrictions on government INCUDE its ability to create libel laws:

https://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan

[ThrustVectoring]

Any individual suing in civil court is using the apparatus of the government in order to enforce controls on speech. This is settled law - the alternative is that the government can control speech through allowing private parties to sue over speech in civil court. Take, for example, a law that would allow school shooting victims to sue people who made violent video games that the school shooter played. While this is not direct suppression of free speech rights to make violent video games, it is definitely using the apparatus of the government to suppress protected speech.

[chrismcb]

It seems to me that the real issue is the college itself claimed that the bakery was racist. It was more about libel and slander then an actual protest. Throw in the fact that the college encouraged students to not go to the establishment... This isn't a first amendment issue.

[elicash]

If libel laws now allow you to successfully sue for tens of millions of dollars because you falsely accuse somebody of being a racist, that's a sad day for freedom of speech. The impact would be truly chilling on national debate.

As I stated elsewhere, there are absolutely limits to libel laws based on Constitutional issues as decided in NYT v Sullivan. I wish people were arguing that based on the facts of this case, not to worry. Instead what I'm hearing from comments like yours is that calling somebody racist and urging a boycott based on it should be enough, just because the underlying accusation is wrongheaded.

[javajosh]

To me, the most important factor in this case is that after the protests, etc the Bakery first asked the University to simply retract it's claims that it was racist and had a history of racism. The University refused, despite having no proof of it's claims, which shows bad faith at least. Another fact that goes to bad faith are the lies they made on the stand, refusing to take responsibility for their actions. If you're reading was correct, and it was an honest mistake, then the University could have and should have corrected it's statement, and should not have lied on the stand.

Another point you make here doesn't make sense: this isn't about "national debate". This is, roughly, about one agent harming another agent with a set of lies designed to harm. If this case involved a newspaper editor getting sued for libel because he called a politician a liar, then yes, you might have a point. But it isn't.

[elicash]

I agree with you about things that make their case weaker.

I would disagree if you're claiming that the national debate about racism only applies to newspapers talking about politicians. There's a HUGELY IMPORTANT debate in the culture generally about racism that I'd argue just as important if not moreso.

(That said, from a legal standpoint it's obviously true that a politician is a clearer-cut case of a public figure. That obviously matters when judging the merits. But you seemed to be suggesting that talking about this case in terms of the national debate around racism is irrelevant.)

[bradleyjg]

Libel is not protected by the First Amendment. It never has been. It ought not to be.

[0xdeadfa65]

This was libel... There was an intentional effort by the college to smear the bakery as racist and hurt their business. What does this have to do with the First Amendment?

[elicash]

https://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan

Libel absolutely has First Amendment limits. I think you can debate whether the facts of the case meet those limits, but to claim there's no Constitutional issues at stake is a pretty extreme argument to make.

[lliamander]

Libel has never been protected speech.