Oberlin is appealing a giant libel verdict against them. (AP Photo/Dake Kang)
Today, Oberlin College filed a wide-ranging appeal, asking an appellate court to overturn the giant libel verdict against it that was based on student protests of alleged racism by a prominent town business. The appeal could not be timelier given the urgency of the anti-racism protests occurring all around the country. The ruinously large verdict against the college, at a time when so many colleges are struggling financially as a result of the COVID-19 crisis, threatens free speech and higher education and should be overturned. For a background of the verdict see here.
Briefly, an African American Oberlin student attempted to shoplift from a local business, Gibson’s Bakery. A member of the Gibson family chased him out of the store and, according to some witnesses, used excessive force in apprehending him. This triggered a Student Senate resolution accusing Gibson’s of racial profiling. Students protested outside of Gibson’s, chanted, and passed out flyers that accused Gibson’s of racism and urged a boycott.
Oberlin argues that the verdict should be overturned, or at a minimum sharply reduced, for several reasons. They argue that as prominent business owners whose history been repeatedly chronicled in the local press, the Gibson’s are “public figures”, which means that they must prove “actual malice” to successfully sue for libel. In plain English, that means they would have to prove that Oberlin knew that the accusations of racism were false or had serious reasons to doubt them at the time of the protests.
Oberlin also argues that since the judge ruled that the student chants during the protests are constitutionally protected speech, then the flyers passed out during the protest must be protected also since they contain the same allegations of racist behavior. The college also argues that Oberlin didn’t publish or distribute the pamphlets and certainly didn’t do so with knowledge of falsity.
In addition, Oberlin argues that it was prevented from introducing evidence that the college had various reasons to believe that the Gibson’s might be racist and Oberlin officials were therefore acting in good faith in supporting the student protests. Their appeal cites, among other examples, an allegation by a former bakery employee that she was told “not to have your [n-word] friends coming to your job” and an allegation that a young woman was told to let white costumers be served first.
There are also various arguments about how punitive damages and attorney’s fees were calculated. Oberlin argues that the judge wrongly gave Gibson’s a second chance to argue that Oberlin acted in with actual malice after the jury initially found that Oberlin had not done so. This is important because most of the verdict was based on punitive damages rather than on actual financial damage to Gibson’s.
This is an extremely important case. In these highly charged times, it is a terrible idea to hold colleges responsible for flyers and resolutions written by students. While it is true that an Oberlin employee handed a copy of the flyer to a reporter and was present at the protests, that is too thin a reed upon which to base a verdict of this size. As the NAACP, one of America’s leading civil rights groups, states in its brief supporting Oberlin, student protests have played a vital role in the fight for civil rights. The verdict against Oberlin threatens to silence students by holding a financial gun to the head of their colleges.
With colleges struggling financially, verdicts like this place enormous pressure on them to censor students. Neither Oberlin nor its students acted perfectly. Some administrators made startlingly immature comments after Gibson’s sued the college and the students rushed to judgment. But financially crushing verdicts like this are not the answer.
There are many places where there are cultural tensions between progressive, racially diverse colleges and the towns that they are part of. As Americans are seeing right now, protests over racism are inherently polarizing and arouse strong feelings. (Although it should be noted the Oberlin protests were entirely peaceful.) As I have noted in an earlier post, there was not a single African American on the jury that hit the college with the giant verdict. Allowing this verdict to stand would threaten both freedom of speech and the financial stability of many colleges. Hopefully, it will be overturned by the appellate court.
