Post #3: False Emergency

Much to my dismay, Oberlin  College appears to be winning the PR battle   it’s been waging ever since the Gibson’s verdict was announced.  And if there’s one aspect of this campaign which cries out— urgently—for refutation,  it’s this : the College’s cynical and jaw droppingly hypocritical –strategy of wrapping itself in the sanctity of the First Amendment. Within minutes of the verdict, Oberlin’s General Counsel had  fired off the following message :

“We are disappointed with the verdict and regret that the jury did not agree with the clear evidence our team presented. Neither Oberlin College nor Dean Meredith Raimondo defamed a local business or its owners… Rather, the College and Dr. Raimondo worked to ensure that students’ freedom of speech was protected…. and they attempted to help the plaintiffs repair any harm caused by the student protests…Colleges cannot be held liable for the independent actions of their students. Institutions of higher education are obligated to protect freedom of speech on their campuses and respect their students’ decision to peacefully exercise their First Amendment rights. Oberlin College acted in accordance with these obligations.”

Two days later , Floyd Abrams, probably the most distinguished  living First Amendment lawyer , told The New York Times  that the verdict signified “a double-barreled threat to free speech on campus.” He elaborated as follows: 

“The notion that uninhibited student speech can lead to vast financial liability for the universities at which it occurs threatens both the viability of educational institutions and ultimately the free speech of their students.” 

And he was not alone. In the very same NYT article on June 10^th,  Lynn Pasquerella, President of the Association of American Colleges and Universities, nodded in agreement “This is very unusual…” she was quoted as saying “…for colleges and universities to be held responsible for the speech and actions of individual students, faculty and staff.” 

Over the past few weeks, a deepening consensus has emerged among educators and first amendment advocates : a general agreement that the jury’s verdict in this case poses a clear and present danger to freedom of expression on campus.

If  this view prevails… if it  is allowed to go  unchallenged, it  will not only embolden Oberlin  College in its determination to defy (and overturn) the jury’s verdict. It will also  lead many otherwise reasonable people  to reflexively  side with  the College– in the mistaken (not fully examined ) belief that they are on the side of the First Amendment angels.  

There’s an old legal axiom that reads  “Hard cases make bad law.”  This is one of those hard cases– if only because there are so few precedents in the case law for defamation that  apply clearly or directly to “Gibson’s V. Oberlin.” 

If you  ask virtually any law school graduate  the following question: “Which Supreme Court decision springs most readily to mind when you hear the phrase “libel law” ? , the answer will almost certainly be the high court’s 1964 decision, New York Times Co. Vs. Sullivan. But that landmark case had less to do with libel or defamation per se than with the inalienable right of a free press to criticize public officials (and eventually, public figures more generally) without the fear of being frivolously sued for libel. This was the case that established the precedent by which  elected officials and public persons are required to meet a “higher burden” of proof when attempting to convince a judge or jury that they had been “defamed” by news organizations like The New York Times. 

It was also, if less self-evidently , an important civil rights case. Prior to the decision in ’64,  Southern Segregationists—in a concerted effort to deter national  coverage of the civil rights movement–routinely threatened to sue out -of -state news organizations for defamation.  

But what, if anything,  does this legendary case  have to do with Gibson’s Bakery vs. Oberlin College? Not much, in my view. And that  is precisely the problem. Note that the two antagonists were both powerhouses in their own right:  The Newspaper of Record vs. Lester Bruce (L.B.) Sullivan, the Montgomery Alabama Public Safety Commissioner. These heavyweight sparring partners bear  scant resemblance to the dueling parties in Gibson’s V. Oberlin.

But, there’s an already existing–and irresistibly seductive– free speech narrative we need to contend with in this context : Whisper the word “defamation” to most First Amendment advocates and/or  liberal academics (myself included ) and they will almost invariably respond in a Pavlovian way , automatically reaching for the protections the “Sullivan” case offers   as a shield against despotic personalities who routinely threaten to sue investigative journalists for libel or slander. But because of this 1964 legal landmark , they rarely do. Even those who doggedly continue down  this bullying path  (e.g. our country’s Licentious Liar -in- Chief ) rarely win. 

This is very good news for the five generations of the Sulzberger Family who own The New York Times Company. But it bodes more ambiguously for the five generations of the un-famous  Gibson family –especially when comparatively powerful institutions like Oberlin College make a concerted effort to defame them. 

So… the consequence of  confusing or conflating  these two very different libel cases  (“Gibson’s” and “Sullivan”)  is  –in effect –to argue that a relatively powerful institution like Oberlin College is   free to knowingly, intentionally disseminate  unsubstantiated accusations of physical assault and racial profiling against the employees of a  small , family -owned business.  

Indeed,  misguided efforts to align Gibson’s V. Oberlin with NYT V. Sullivan may help to explain one of the more arcane pre-trial motions on the part of the College’s lawyers in this case. They attempted (thankfully, without success )  to convince the judge that the Gibson family falls into the amorphous legal category of “limited public figures” (whose ability to sue for libel is considerably more circumscribed than that  of  the average American. )The college made the utterly specious argument that because the protests against the bakery were widely covered by both local and national media, the Gibsons were no longer the sort of non-public figure who can  more easily prevail in a defamation suit. In this regard, the college behaved like the pathological child who murders his parents and then pleads for mercy on the grounds that he’s an orphan. 

Rather than situating the Gibson verdict  in the context of Sullivan, I would propose a different frame of legal reference,  Rosenblatt v. Baer (’66) a more relevant   case that was argued almost  contemporaneously with NYT v. Sullivan. The plaintiffs in that case made the most eloquent and moving argument I’ve ever read about the virtually unrepairable damage that can result from defamatory accusations:  “The destruction that defamatory falsehood can bring, is, to be  sure, often beyond the capacity of the law to redeem. Yet, imperfect though it is, an action for damages is the only hope for vindication or redress the law gives to a man whose reputation has been falsely dishonored.”

Consider the case of the associate Dean at the University of Virginia who was falsely accused by Rolling Stone of having ignored allegations of gang rape against members of a campus fraternity. In 2016, she successfully sued both the magazine and the author of the discredited article for having defamed her reputation. And rightly so, in my opinion.

That’s what is really at stake in this case. And unless you believe that all laws pertaining to libel and slander should be abolished (in the name of First Amendment absolutism) , then you are obligated to find a way of balancing the claims  of free expression against the very real damage that defamation can do to ordinary citizens, to non-Public figures like the Gibson family. If defamation laws are viewed as an inherent threat to the First Amendment,  then the same must be said of  laws that make it illegal to yell “fire” in a crowded theater. 

And yet, this doesn’t necessarily mean that  colleges and universities must now be more vigilant in “policing” student demonstrations  (for fear that the academic institution  will be held liable for the speech and actions of their students.) That is NOT the lesson to be learned from Gibson’s Bakery Vs. Oberlin College.

Having been in the courtroom for nearly every moment of  this lengthy trial, I can report that the judge,  John Miraldi, was unfailingly scrupulous in his efforts to protect, to bracket, to “cordon off” every word that was uttered within the context of the protests  outside Gibson’s Bakery  on Nov. 10 and 11, 2016 (whether  chanted, yelled, or amplified by bullhorn—and this protection extended to even the most vociferous accusations of racism, no matter how unfounded in fact . ) 

And while it is  indisputably true that the college neither can nor should be held responsible for the free speech of its students (or faculty), it’s equally true that in this case, the College –despite its protestations to the contrary—was never a “neutral” party which refused to “take sides” in an off campus controversy between a local business and three of its students.  

Didn’t the Oberlin Board of Trustees sacrifice any pretense of  neutrality the moment one of its members offered to pay the legal expenses for  the students who were charged with attempted theft? Was it “impartiality” that motivated the Dean of Students to use college funds  to pay for photocopies of anti-Gibson leaflets or to purchase food for the demonstrators or  – this is stuff you can’t make up–to buy mittens for them   (out of fear that their hands  might get cold? ) 

To the best of my knowledge,  this is not what  defenders of the First Amendment  have in mind when they refer to the  “chilling effect” that certain actions, policies , or (even) jury verdicts might have on freedom of speech. The College’s costly legal mistake had little or nothing to do  with what its students and faculty said in public. No,  its legal liability was almost entirely attributable to  the actions its  administrators took, actions that set out to knowingly, intentionally  defame the reputation of the Gibsons and their business. 

How do we know the intentions  of the college administrators in this regard? Through otherwise private,  “e-discovered” text messages and e-mails that were never intended to be made public. For example, Jan Miyake,  an Oberlin conservatory professor who served as a mentor to one of the students arrested for shoplifting, texted about her desire to “put a smear on their (the Gibson’s) brand.” She was concerned that the college’s economic boycott of the bakery –in and of itself–wouldn’t “hurt them” sufficiently. On the day that the three Oberlin students were sentenced for attempted theft, ordered to pay restitution, and put on probation for one year, Toni Myers , a member of Raimondo’s staff, sent a text to her boss which read “After a year, I hope we rain fire and brimstone on that store.” When Raimondo was asked in court whether or not she considered that to be “an inappropriate response” , she answered “her feelings are her feelings…” 

These—and countless other, e-discovered  messages—help  to explain why the Gibson’s lawyers were able to convince the jury that the College displayed  “actual malice” toward the Bakery (i.e. that  “higher burden” of culpability I alluded to earlier, a threshold that even non-public figures  like the Gibsons  are   required to meet if they hope to  be awarded “punitive” damages .  

If there is any grey area in this case  that might be subject to appeal , it pertains to the content of the anti-Gibson leaflets that the college helped photocopy and distribute. I’m referring here to the notorious flier  that Dean Raimondo admitted having handed directly to a reporter from The Oberlin News Tribune. It read in part: “A member of our community was assaulted by the owner of this establishment yesterday.” 

Now, in my two previous blog posts, I confirmed that the investigation by the Oberlin Police Department of the previous day’s incident concluded that there was no such assault. But even if there had been, it was surely not committed by the “owner” of the bakery. Just for the record (and for the benefit of those who  value verifiable  facts over wild and baseless accusations )  Gibson’s is co-owned by Allyn Gibson, the elder (who is in his ‘90’s) and his son Dave Gibson, (who is in his ‘60’s.) 

Presumably, even the most poorly informed of the protesters didn’t mean to suggest that Oberlin students were accosted the previous day by two senior citizens. But who among them  had time to sweat such minor factual details, given that they were so hard at work publicly displaying their righteousness, their steadfast determination to protest against every form of racism, including those that don’t actually exist? 

Verifiable declarations of this sort are categorically different from subjective opinions such as “Gibson’s doughnuts are the worst in town.” Personal opinions—no matter how eccentric  or unconvincing –-are constitutionally protected. Similarly, a political cartoon–no matter how raucous ,  vulgar or monstrously unfair to its satirical target  –never purports to be an assertion of fact.  By contrast, to declare –in print–that a student “…was assaulted by the owner of this establishment…” is to commit potential libel (because a factual declaration of that sort is subject to verification.) Indeed, in this case, that allegation had already been disproved by police investigators. But it’s equally true that   Raimondo was never  accused of having written that libelous statement. Her culpability rests on having “aided and abetted ” defamation by helping to disseminate  the libelous statements . So…one can easily envision an appeal that would hinge on this distinction.

Parenthetically, if the Gibson  decision  is appealed to higher courts, it might just earn itself a distinctively eccentric niche in  the history of defamation law.  The words “Gibson Bakery Case” could become shorthand for the sort of Midwestern common sense that  (presumably) informed the reasoning of the N.E. Ohioans who served on  the jury.  Here’s what I mean by singling out this  particular neck of the woods :

In the decade that followed  NYT V. Sullivan ,the high court continued to defend  (and to expand)  the free speech privileges of  both news organizations and individuals who found themselves up against charges of defamation.  In fact, in the 1974 decision Gertz v. Robert Welch, Inc.,  the Supreme Court  blurred the very distinction between assertions of opinion and assertions of fact. In a decision  that proved highly controversial ,  the justices  argued that”under the First Amendment, there is no such thing as a false idea.” For many  free speech advocates (and I count myself among them) that was a bridge too far.

But  in  a fascinating geographical coincidence, it was another court case (originating  in N. E. Ohio!)   which addressed  this affront to  common sense . In 1985,  Milkovich v. Lorain Journal Co. significantly limited  the so called  “opinion privilege.” Applied to the Gibson case, this precedent makes  it impossible, or at least , more difficult , for Oberlin College’s legal team to assert that accusations of racism against the bakery were protected “opinions.” In other words, if   “opinion privilege” is no longer absolute , the anti-Gibson leaflet would still be libelous even if the offending sentence were re-written so as to read  “It is the opinion of the protesters that a member of our community was assaulted by the owner…..”  And yet,  if that very same statement had only been chanted by the protestors— rather than printed on pieces of paper that were then distributed to non-protesters–it would still, presumably,  have  been constitutionally protected.

So–as I hope I’ve demonstrated in the course of this post — the College was not in fact held responsible for anything its students said  within the sacrosanct context of the protests on November 10^th and 11^th, 2016. And that in turn is why  I believe that First Amendment advocates like Floyd Abrams are mistaken  when they leap (prematurely in my view) to the conclusion that the verdict in this case will  inevitably have a chilling effect on the speech of  students and  faculty.