Post #4: False Emergency, Part II: Diagnosing PFAP (Premature First Amendment Panic)

Many years ago, I was writing an essay for a British publication in which I attempted to use the word “crazy” the way  people on this side of the Atlantic routinely employ it: as a synonym for “bonkers.” As in “What was she thinking? “Is she crazy? But my British editor saved me from a potential defamation suit, solemnly explaining that “We don’t have a First Amendment over here.”  In Great Britain—I was disappointed to learn—the well known figure I was writing about could, conceivably, have accused me of (and sued me for )  libel —because I had (however inadvertently)  implied that she might be “crazy “ in the more worrisome, psychiatric sense of the word. And in the U.K., the burden of proof –the obligation to prove the truth of the allegation —falls squarely  on the party accused of defamation, which is to say: the author.  

British lawyer Mark Stephens puts his finger on the problem when he complains that “Crooks and brigands from around the world come here to launder their reputations, where they couldn’t get exculpation in either their home country or indeed in the United States of America.” 

All of which is a  longwinded way of saying that I will never, ever ,  take the protections provided by our First Amendment for granted. And if I had any reason to believe that the verdict in  the Gibson case would have even the slightest chilling effect on freedom of speech, I would add Oberlin College to the long list of otherwise unsympathetic individuals and institutions whose free speech rights I would instinctively  defend on principle, no matter how loathsome or nonsensical the content of their speech.  A tentative short list would include White Nationalists like Richard Spenser, pro-Trump,  anti-immigrant provocateurs like Ann Coulter, as well as censorious , anti-porn crusaders like Catherine MacKinnon. And after much soul-searching, I have reluctantly concluded that even a sleazy, self-serving opportunist like Julian Assange (who merely poses as a free speech absolutist) must be defended against the charges the American government has recently filed against him. Otherwise, routine, constitutionally protected journalistic practices will be criminalized. But in the case of Gibson’s V. Oberlin by contrast,   there is no “first principle”  at stake that would require a principled person to take the side of the College. 

As I argued in last week’s blog post, Oberlin College’s efforts to portray itself as an embattled protector of endangered first amendment freedom on campus, is at best , unconvincing. To be sure : Spokespersons for the college continue to argue—with  an unflinchingly straight face —that what really concerns them about the jury’s verdict in this case is not so much the effect it will have on Oberlin’s  reputation or its financial sustainability, but rather the way in which the $ 25 million awarded in damages (plus $6.5 million in attorney’s fees) might deter other colleges and universities from adequately protecting the free speech rights of their students and faculty. As the brilliant, fearless (but easily embarrassed)  Rachel Maddow might say—bullpucky. For the ten thousandth time:  Oberlin was not held responsible  for anything its students said during the two days of anti-Gibson protests in November of 2016. And anyone who fears  that it will prove more difficult to preserve academic freedom for faculty and freedom of speech for students in light of this verdict  doesn’t know how to walk and chew gum at the same time. 

A succinct bit of advice to other institutions of higher learning:  If you want to avoid winding up like my former employer, without having to clamp  down on free speech,   there is only one admonition  you must heed: make sure that members of your administrative hierarchy don’t undertake malicious vendettas against local businesses. 

With regard to PFAT (Premature First Amendment Trauma) , I would tell them what my father used to tell  me whenever I got unnecessarily hot and bothered about something : Not to worry. But it’s also essential to remember that Oberlin  College and Meredith Raimondo were found guilty on other charges as well. So, even if the defamation claims against them were to be  overturned on appeal, they would still stand convicted of “intentional infliction of emotional distress” and “tortious interference in business relationships.”  *

What I find most exasperating  about Oberlin’s protestations of First Amendment martyrdom isn’t just the inaccuracy of this claim, but the wanton hypocrisy of  it. Let me begin (uncomfortably) close to home. In one of the e-mail exchanges among administrators cited most frequently by the Gibson’s legal team, Oberlin’s Vice President and Dean of Students discusses strategies for retaliating  against a senior member of the faculty who published a letter to the editor of the campus newspaper defending the bakery and criticizing the college. As the faculty member in question , I can easily document the  ways in which Raimondo and other administrators carried out that retaliation : These included– but were by no means limited to — a lengthy series of disciplinary proceedings, the loss of already awarded research funds, shockingly  inappropriate interference with the academic content of my courses, and a prohibition against participating in what would have been the final commencement ceremony of my academic career, Still, there’s no need for crocodile tears or a rendition of “Hearts and Flowers.” I’m hardly a Soviet dissident who wound up wasting away in the Gulag.  My larger point is simply this :  Given the willingness—make that  eagerness—of Oberlin administrators to punish faculty who dared merely to criticize them in the opinion pages of the campus newspaper, it’s difficult to accept—let alone stomach– the idea that the college’s primary motivation in this case has always been its steadfast commitment to the preservation of  freedom of speech on campus. 

One of my most startling revelations about the College  came when I asked a local doctor whether or not he was following the Gibson controversy.  “Not all that closely” he said. But he then quickly added : “It looks pretty straightforward to me.  Three students got caught trying to steal merchandise and the College is in denial about that basic fact.” At which  point—and purely as a thought experiment–I asked if he’d be willing to add his name to a hypothetical pro-Gibson petition circulated among  professionals and business owners in town. His response didn’t just surprise me. It floored me. 

“Roger, are you kidding? Absolutely not.”  he declared, in an uncharacteristically animated voice. “Don’t you realize that the College is by far the most powerful entity in the town?  They would immediately kick me out of the network of approved health care providers, and I’d lose all my college patients.”

In retrospect, I’m a bit embarrassed by my own naivete. Oberlin College, after all, like most private institutions (even the non-profit variety) is a corporation. And I shouldn’t have been surprised, let alone shocked, to learn that the College will often behave in ways that are consistent with our lowest expectations of  “corporate culture.” 

Still, the single most cringeworthy aspect of the college’s free speech defense is the shameful way its students and some of its  administrators treated members of the press who were merely attempting to “cover” the anti-Gibson demonstrations. Journalists after all, don’t just pontificate about freedom of speech; they practice it for a living, on a daily basis,  in the pages of the publications they write for. 

Jason Hawk,  a reporter for The Oberlin News Tribune testified at the trial that he was treated abusively by both Raimondo and the demonstrators. He described the various ways in which Raimondo kept re-positioning herself so as to  physically block his camera lens. He also described the fury with which protestors spat at him and flipped him the bird. Raimondo was forced to admit under oath that she authorized her staff members to provide the demonstrators with cardboard signs reading   “No photos.” She encouraged the students to use these placards in two different ways: to block the cameras and to shield their own faces. (Parenthetically, I should note that today’s new video entry dramatizes portions of Raimondo’s testimony about her treatment of Hawk.)  

This unconscionable  behavior took place in November of ’16, a full nine months after Melissa Clark, a Professor of Communications at the University of Missouri, was fired for having aided and abetted students engaged in  a similar crusade against the First Amendment rights of journalists. Clark was present (“to support her students”) at a rally against racism on the U of M. Campus in November of the previous year.  As documented in a video that quickly went ultra-viral, student demonstrators can be  seen—and heard—chanting “Hey hey, ho ho, reporters have to go.” 

A photographer on assignment for ESPN then pleads   “I am documenting this for a national news organization…the first amendment protects (both) your right to be here and mine.” An angry protestor snaps back “What is so hard about respecting our wishes?” “Because I have a job to do”  replies the reporter. “We don’t care about your job” screams an angry demonstrator in response.  

All the while, this back and forth  between the photographer and the demonstrators is being videotaped  by yet another reporter. Until that is ,  Professor Clark –the faculty member  cited above— attempts to confiscate the reporter’s  camera. But not before that very same camera manages to record  her thuggish cry  “Who wants to help me get this reporter out of here? I need some muscle over here.” According to  a The New York Times article published on  Nov 9, 2015 

“On Twitter, students who participated in the protest defended their decision to create a ‘safe space’ without journalists.”

What a strange moment we’re living through ,  a moment when student demonstrators no longer care about communicating   their concerns to people who live in the “outside world.” Perhaps self-righteousness is now its own reward, an end in itself. The novelist Muriel Spark once spoke derisively of people who “feel that their moral responsibilities are sufficiently fulfilled by the emotions they have been induced to feel.” A week ago Sunday, as Trump was threatening to authorize  an unprecedented number of deportation raids on the homes of undocumented immigrants , I took part in a demonstration  in N. Carolina against his war on asylum seekers and immigrants more generally (with a special focus on the internment camps for children that ICE is operating on our Southern Border.) The featured speaker at this rally was one of the great  living civil rights activists, Rev. Dr. William Barber; and I think it’s fair to say that not only he, but all of the demonstrators , were solicitous of press coverage, eager to maximize the number of images of the protest that might appear in either local or national media outlets. The point of the rally was not to make ourselves “feel good” but –in our own small way– to do  good.  

But at Oberlin by contrast, group  protest has degenerated into group therapy, into exercises in feel -good- solidarity. One of the editors of Oberlin’s self-described “alternative” student newspaper The Grape, wrote

The 2016 presidential election was fresh; the violence at Gibson’s, to me, felt like another, more personal reminder that white complacency like my own was a delusion, a two way mirror behind which systemic racism operated unhindered….Lined up in front of Gibson’s, shoulder-to-shoulder with students and community members chanting ‘This Runs Deeper’ and stomping to keep warm felt real and productive in the face of so much badness …

And the oddest aspect of this group dynamic is the oxymoronic (or is it just moronic? ) mix of emotions  exhibited by the student demonstrators : neediness and self-pity on the one hand; defensiveness and thuggish-ness on the other—an unsavory , hybrid cocktail that has generated one of the most useful  linguistic coinages of recent years : the “crybully.” 

Let’s look again at the timeline and the historical context of the demonstrations that occurred immediately before and after the presidential election of 2016.  The ugly and widely reported events at The University of Missouri took place on November 9th, 2015,   exactly  one year before the shockingly similar incidents at Oberlin. Which prompts at least one achingly obvious question: “Dean Raimondo, do you pay no attention whatsoever to the national coverage of student demonstrations on other campuses?” In the intervening year,  the U.S. elected a new president who made no secret of the fact that he regards the free press as an “enemy of the people.” That Oberlin students would adopt a similar attitude toward the press is deeply dismaying, to say the least.  

Then again,  on March 21st of this year, less than two months before the  jury heard opening arguments in Gibson V. Oberlin, the Trump administration  issued an executive order that would deny federal research funds to any college or university deemed to have violated an individual’s right to freedom of speech.

But does any thoughtful individual believe that Trump—of all people—has turned into a true blue defender of the First Amendment? The idea that Trump  was really  defending free speech on campus is as laughable as the idea that Oberlin is doing the same.  In this regard, Trump and Oberlin are merely opposite sides of the same, censorious coin. Trump wants to defend the right of Milos Yianppoloous to speak at colleges like Oberlin.  But would he be as quick to support the right of a pro-Palestinian advocate of BDS to speak here– or anywhere else– for that matter ? You be the judge. 

Of course, these days, at Oberlin, we don’t have to worry about demonstrators shutting down the likes of Yiannopoulos. No one at Oberlin would dare invite him in the first place. The last “provocative” speaker to address an Oberlin audience was  Christina Hoff Sommers four years ago. And let’s face it: She’s a lot less controversial than a nauseating, alt-right firebrand like Yiannopoulos. Nevertheless, the heated demonstrations prompted by her visit  led to the demise of the organization that invited her: The Oberlin Young Republicans and Libertarians. 

But if you’re still inclined to believe that it’s utterly irresponsible of me to be comparing Oberlin College to Donald Trump in this regard, I’d like to call your attention to something the college’s legal team did the very day after Trump announced his free speech -on -campus initiative. They filed a motion asking the judge to  dismiss the Gibson case before a jury could hear it. Their argument—submitted in the form of a motion for summary judgment –read in part as follows:

The relief plaintiffs seek would require Oberlin College and Dean Raimondo to violate the College’s institutional mission and values . This Court should not allow plaintiffs to bully Defendants into ….infringing on the constitutional rights of others (by disciplining student protestors)…Colleges and Universities , both private and public, have recently been assailed for quelling speech on their campuses. Politicians have taken notice and have encouraged, through legislative and executive efforts, the free exchange of ideas and opinion on college campuses…On a federal level, the Trump administration, on March 21st, 2019, issued an executive order that would deny federal research funds to any college or  university deemed to have violated an individual’s right to express opinions or views, regardless of how offensive or objectionable the institution finds them to be. “ 

What this proves, beyond any reasonable doubt, is that Oberlin College ‘s commitment to the defense of First Amendment values is no less thorough,  vigorous, or sincere than Donald Trump’s.

* Something that will be immediately evident to any lawyer reading this blog: I am not  a lawyer. I’ve never even played one on TV. And so, as a layperson, I feel completely free to ridicule legal jargon, especially those phrases like “tort law “ or its adjectival derivative “tortious “–words that subject colloquial English to Tor-ture of the sort that should probably  be banned by the Geneva Conventions of 1949. Even the most superficial investigation into the etymological roots of tort and tortious yield nothing but disappointment . Tort it turns out has nothing whatsoever to do with tortoises (sad), let alone pastries (sadder). I did though get my hopes up when I learned that linguistic sleuths have traced its PIE root  (i.e. its Proto-Indo-European prototype)  back to “terkw.” Still, anyone expecting a further connection to Miley Cyrus (ancestry.com for example) will be sorely disappointed. The legal trajectory  of “tort” –as a pretentious synonym for “breach of duty” or more simply “wrong” (as in ‘to be wronged”) –dates back to the 16th century, where it should probably have remained. I thereby propose the following retort: “What’s wrong with (just plain) wrong?

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