[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.

[tptacek]

An accusation of pedophilia is unprotected because accusations of crime are considered, at law, to be intrinsically damaging. Racism (and, to some extent, racial profiling) is not against the law: I believe it's perfectly legal to stop only black shoppers for shoplifting, for instance (so long as they're actually shoplifting), even though 60+% of shoplifters in Oberlin appear not to be black.

Here, I wonder whether it's not the speech that got the university in trouble so much as the concerted and diligent effort to harm Gibson's business through multiple means.

[elicash]

I deleted my first reply because I think you're being disingenuous with this comparison. I think a better comparison is if I call someone a liar when speaking broadly about the person. Even if they have a documented history of telling the truth and I don't have a single lie, I think that's protected.

> It’s one thing to protect expression made in good faith that turns out to be wrong. That’s important to avoid chilling effects.

I agree with this strongly.

Edit: Also, I think, given you're a lawyer, you'd agree with me that a client of yours is on much safer ground when the thing they're accusing somebody of is about their general character rather than a crime. (Not that you'd have given your approval on the flyer with just that one claim struck out.)

[rayiner]

The Oberlin dean didn’t just say the bakery was “racist,” she said they had a “long history of racial profiling.” That’s a critical distinction. The first amendment doesn’t directly protect falsehoods. But to give wide berth for free expression, we have carved out all these situations where even a false assertion will be protected: parody, hyperbole, opinions, assertions made based on good faith investigation, etc. If the Oberlin dean had, for example, said the bakery was racist, based on the fact that the bakery failed to consider that calling the police on a black student would subject the student to far graver consequences than under identical circumstances where the student was white, that would arguably be a non-falsifiable opinion, or a statement about someone’s “general character.”

But she went beyond expressing an arguable opinion. Saying that someone has “a long history racial profiling” is an assertion that a pattern of concrete events have taken place. It’s not an assertion about someone’s “general character.” It’s falsifiable. Moreover, the dean couldn’t even construct a fig leaf, some post hoc rationalization, to defend that assertion. She all but admitted she had tried to destroy someone’s business based on the equivalent of a “fake news” Facebook post.