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Ralph Shapira
I'm reposting here a piece I first posted in July 2019 explaining why the Gibson's verdict was NOT on account of students' free speech, but rather was about the college administration's active encouragement of the students' defamation of the Gibsons, its own dissemination of their libelous statements and its own boycott of the Gibson's business:
"Oberlin has said the Gibsons verdict will chill free speech on campuses across the country. If so, it is entirely Oberlin’s fault: it is the College’s own misleading statements about the case that caused the chill.
"Oberlin has consistently said — and maintains to this day — that the College was not involved in the libel or the boycott, that they were solely the actions of its students. But that badly misstates the case. The evidence at trial showed that Oberlin, through its Dean of Students (the “Dean”), directly libeled the Gibsons, fueled and fomented the student protests and intentionally interfered with Gibson’s business. Other colleges need not fear the Gibsons precedent unless they directly participate, as the Dean clearly did, in wrongful conduct that injures others. Nothing about the Gibson's case if properly understood suggests that any college need tamp down student speech to protect itself from liability.
"The evidence showed that at the demonstrations, the Dean handed a copy of the libelous flyer to an editor for the Oberlin News Tribune. There’s no more effective way to disseminate a libelous statement than to give it to a newspaperman.
"The Dean didn’t stop there. She arranged to have copies of the libelous flyer made for handout by the students on the Conservatory’s copying machines without charge. Witnesses testified that she and a subordinate handed out stacks of the flyers. She took a bullhorn, stood among the student protestors and directed and encouraged their actions. She arranged for the college to reimburse the purchase of gloves for the students, she provided them food and water and she directed them to spaces for rest.
"Oberlin allowed the libelous materials to be posted in Wilder Hall, where they remained for a year after the protests. The Dean also personally directed Oberlin’s food service company to stop buying from Gibsons (other administrators including the College’s then-President disagreed with cancelling the bakery’s business but kept silent in order to “support” the Dean). All this evidence is apparent in the copies of the trial transcript reproduced in plaintiff counsel’s FAQ. To be sure, Oberlin introduced evidence to the contrary on some points, but all the above is based on admitted evidence that the jury chose to believe.
"This all amounts to the College's intentionally disseminating the libelous materials and fomenting the student protests and boycott off Gibson's.
"Even if the college hadn't directly disseminated the libelous statements and had only encouraged the students in doing so, it would have been legally liable for the students' libel. The Judge ruled in a pre trial hearing that a party's "aiding and abetting" another's defamatory conduct makes it legally liable for the damages that result. Citing the Ohio case Cooke v. United Dairy Farmers, the judge ruled that: “[O]ne who requests, procures, or aids and abets, another to publish defamatory matter is liable as well as the publisher.”
"Oberlin’s mischaracterizing the case did more than just fuel other institutions’ groundless fears about student demonstrations; it had more pernicious effects on Oberlin itself. In light of the known facts about the Dean’s actions and the serious economic losses and emotional distress suffered by the Gibsons, this was always a dangerous case that should have been settled. Oberlin’s self-delusion that the case was only about student speech caused it to see the case as “a matter of principle” and likely prevented it from making the serious settlement efforts — offering sincere apologies, admitting Gibsons was not racist, making meaningful efforts to restore Gibson’s business and compensating Gibsons for its economic damages — that could have helped resolve the case in advance of trial.
"It also led to the profoundly ill-advised statement by the college’s General Counsel, after the jury’s multimillion dollar compensatory damages verdict and on the eve of the jury being sent back to consider punitive damages, that notwithstanding the jury’s decision, Oberlin did not libel the Gibsons. There seems little doubt that this statement, seized upon by plaintiffs’ counsel in arguing for punitive damages, further inflamed the jury against the College. Insulting a still empaneled jury is profoundly bad strategy, and juries tend to reward dissemblers with bad results. Trial lawyers know how effective it can be in arguing for punitives to be able to say that “they still haven’t accepted responsibility” or “learned their lesson.” That the General Counsel didn’t know that is inexcusable.
"The Board of Trustees should consider how and why the administration so badly underestimated the case against it, why it failed to make more meaningful efforts to settle, and why it continues to misrepresent the case to the Oberlin Community and the public. See, e.g., the College’s President’s post-trial interview with CBSN’s Tanya Rivero (“I think that this decision is really about whether the college should be held liable for the speech of students”). What is the continuing efficacy of this mischaracterization? Who is the intended audience, and what is it meant to accomplish?
"I can think of only one purpose: to conceal from the Board of Trustees and the rest of the college community the extraordinary recklessness and incompetence certain members of the administration displayed from the beginning of this sorry affair until today."
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