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."

Dick Hobby

Ralph Shapira's posts on the Gibson affair are great!  Thanks, Ralph!

I read the fifty-page court decision in response to the appeal.  It goes point by point in great detail and makes it clear that Oberlin is completely at fault.

Oberlin College should pay the amount and apologize to the Gibson family and fire all those in the administration who were involved.

Dick

Peter Griswold

Hello Ralph,

Thanks for posting the link to the article by the Ms. Gibson published in the NY Post and your careful analysis of the actions of the College which exacerbated the situation.  Totally agree that is not about free speech, and if Ms. Gibson's account of students accosting customers outside the store, whether that goes beyond the relam of free speech.  I stand corrected that the Dean's actions, if the evidence of her behavior is true, were more than modest support.  It's interesting that Wikipedia has a long entry on the case, with comments by experts with references to the tension over the 2016 presdiential election.  

I am disappointed, but not surprised, that the NY Post chose to publish the pictures of the three students.  Why didn't they publish a picture of the Dean?  You make a strong case that the statements of the behavior of the administrators is reprehensible.  It seems to me that the General Counsel, in trying to make a fine point that the College didn't state that Gibson's was racist, missed the point that the colleges liable for supporting the dissemination of materials that said otherwise. 

I go back to my initial question, though.  Does the award seem excessive?  Ms. Gibson make the point that the business is near bankruptcy because of the situation, and that students are brainwashed not to purchase Gibson's products.  I wondered how true that is. 

I ask too whethrr others believe the award was excessive.  $11 million in compensator damages.  That's a lot of unsold donuts, but I am not an expert in the financies of small businesses. 

And at the risk of repating myself, I feel as though this incident will have serious and longlasting repercussins for town/gown relationships.  

Edward McKelvey

I can state from first hand experience through mid 2019, when I left the faculty, that business at Gibson's was still well below normal more than 2-1/2 years after the event.  At one point Pam and I ran into Dave Gibson, who we did not know, as he was talking to other neighbors.  This was before the trial. My vague recollection is that he tried to reason with the College in order to prevent a law suit, but to no avail.  While I did not witness the events directly I talked to some students who did, and their accounts generally support what Ralph and Mrs. Gibson have said.  The whole episode reflects poorly on the College, which I believe wrong-footed this at every step.  The College would do well to direct some resources toward improving relations with its neighbors.  Many in the county feel the College throws it's weight around, and this event supports that view.   

Ralph Shapira

Responding to Peter Griswold's question, YES, the award was grossly excessive.  But that's what can happen when a jury gets royally pissed off at a defendant, which both it and the Court of Appeals surely were.  Responding to Dick Hobby, Dean Raimondo should most definitely be fired for her leading role in this disgraceful debacle.  And not just because of her conduct.  Her appalling emails diaparaging the Gibsons and attacking certain faculty members who urged the college to take a different approach doubtless inflamed the jury.

Robert Baker

Just before trial, It Berlin was offered the opportunity to settle for $5 Million (which plaintiffs had agreed to in mediation). Oberlin rejected this proposal, recommended by the Judge. It was very foolish not to settle this case. I had a long conversation with plaintiffs' lawyer last year ( or maybe 2020), during which he advised me of this. He was only willing to talk to me because of my history of working in legal services, a background that was similar to his. Either Oberlin got very bad advice from its counsel, or the Board of Trustees was willfully blind to the advice of counsel. This case should have been settled. The Dean was republishing defamatory documents to the media. This was not really ever a First Amendment case. This is he same Board that contracted with a Catholic health service that now will not provide proper women's health care, necessitating a separate contract with someone that will, and giving Oberlin another huge black eye. Something has to change. 

Ted Gest

I also have followed the Gibson's case closely and agree with Ralph's take on it. To clarify one point, former Dean Raimondo is no longer at Oberlin but left to head student affairs at Oglethorpe University. I believe that all major officials involved in this sorry episode have departed Oberlin. In case anyone didn't notice, the New York Times chose to put the case on its front page today, September 9, another PR hit for us. As many have pointed out, we should have settled this case at the outset.

Ted Morgan

I appreciate Ralph's postings helping us all understand this sad case. I wonder when the repercussions will come back to cause much needed change in Oberlin's Board of Trustees.

I'm also very conscious of how this case resonates with right wing politics --witness Rich Lowry's NY Post column about the "woke apocalypse" (not surprising, too, that Ms. Gibson's piece was in the Post, known for Right wing editorializing).  But that is a phenomenon that has for decades (going back into the 60's), helped to build a backlash that has shaped the world we live in.

 Those interested in a progressive, democratic future  and might be interested in a major survey study jointly published by the journal "Jacobin" and the institute for working class politics demonstrating how progressive candidates emphasizing economic inequality issues and downplaying "woke" politics would find broad support among the populace.  I take it what they mean by "woke" politics does not mean ignoring the very obvious need to address racism, sexism, & heterosexism in their many destructive forms, but instead to address these in a context of building a broader class coalition.

Robert Dickinson

I am sure everyone has seen the announcement yesterday by the college that they are initiating the payment of the court judgement plus interest.  While finally someone has reached an intelligent decision, this announcement is disappointing in its tone and lack of apology to the Gibson family.  Our President, and our Board of Trutees continue to show terrible judgement and a high level of arrogance in this announcement.  First, while they don't come out and say it blatantly, they obviously don't agree with the verdict.  In their settlement announcement they make no mention of the Gibson Family or the Gibson business relationship.  There is no apology for what this incident did to the Gibson family.  Their mental anguish had to be extreme!  They were being shunned in the community they had been a part of for over 135 years.  They had to lay off employees!  They continue to be accused of racism.  While money will give them a sense of security, it can't pay for the stress and anxiety this family has suffered for years.  I am ashamed of Oberlin College, its administration and the faculty, students and staff that continue to punish the Gibson family and business for the lies that were told about them a few years ago.  In my opinion the School should honor the Gibson's for the struggle they indurred.  The school should give vouchers to the students to spend at Gibson's business!  The school should immediately re-instate all of their business relationship that they had in the past.  Maybe one day the Gibson's will be so grateful they will make a donation to the college!  
 

Ralph Shapira

I am beyond relieved to learn that Dean Raimondo is no longer at Oberlin.  Thanks, Ted Gest, for this welcome news.

Ralph Shapira

And I'm SHOCKED to learn from Robert Baker that Oberlin rejected a mediated settlement of $5 million.  STUPID, STUPID, STUPID!!!!!

Edna Chun

Please see the excellent article, "The Oberlin outlier" by Eric Foster in cleveland.com. The sutitle is "in ourlegal system it is better to be wrongfully accused of being racist than to be a victim of racism."

Edward McKelvey

Thanks, Bob, for clarifying the $5 million settlement that was rejected.  I think this was what Dave Gibson was talking about in the conversation I had with him while still at Oberlin.  So the College rolled the dice and suffered a loss of more than $7/$1, not counting attorney fees and the implicit costs of time spent on this case and the effect it has had on town/gown relations.  Perhaps I'll talk to my colleagues in Economics about adding a course in risk assessment!

I see that the College has initiated the process of payment.  Welcome news, and I suppose we could not have expected any mea culpas given how hard they dug their heels in   A pretty grudging statement, all in all, that doesn't even mention Gibson's.

I don't know how others feel, but I am not willing to give to the College until I see the administration and the Board of Trustees acknowledge how badly they handled this situation alomg with tangible evidence that meaningful efforts are underway to improve community relations.  Maybe time will change things but that's how I have felt since this sorry episode started and it's how I still feel.

I was aware that Dean Raimondo had left and also that the General Counsel who managed this case (I forget her name) had also left.  With Krislov also gone that takes care of the key administration people.  The Board of Trustees is another matter.  Perhaps candidates for the Board should be asked to comment specifically on issues raised in this case as they see them.

Chuck Cole

I agree and intend to also withhold gifts to the College until I see a commitment from the Trustees to admit THEIR mistakes (the buck stops there) and chart a different course.  Perhaps our next class reunion (cluster) gift should come with some strings attached.  And how do we begin to alter the composition of the Board?  I know we can suggest almuni trustee nominees but don't the Trustees control who finally is on the ballot?  It will be a slow process but somehow this group of fellow alumni has so failed in its mission to safeguard the values of our College that we have held so dear.

Many of you will remember our telling the College that after we graduated, we would not give to the College until Robert Carr was no longer President. You will find it amusing (I hope) that in one of my first years at Dartmouth (retiring recently after 39 years on the faculty at the medical school, now the Geisel School of Medicine named for form Darmouth alumnus Dr. Seuss), I was at a faculty meeting when someone rose to praise how "that great scholar Robert Kenneth Carr would have handled a certain Dartmouth situation."  Carr went to Oberlin from his faculty position at Dartmouth.

Daniel Miller

Bob had a message that has been ignored.  

The health care was contracted with a catholic hospital which meant Oberlin knew from the get go that a college with more women than men was going to have more than half its students getting inferior gynecological care.  Instead of dealing with two caretakers, it should have been obvious to start with a caretaker that was all inclusive.

Reed Cosper

I’m in a Proust moment. All the Brown undergraduates are back in town. And fully settled in. It is the end of the second week, after the first week’s overture to the academic year. Yesterday was first Saturday after the second week. The weather fantastic. First week of lectures over. Syllabi distributed. The reading, reading, reading begins in earnest. Exquisitely free.  From my passing car, I see an undergraduate dressed summer clothes carrying books in a backsac.  Instantly it is September 1964. I am at Oberlin, ingenuous, sincere, raw, wide-eyed, empty.  But I digress. I am actually writing about Gibson’s.
 
Stop blaming Oberlin, the administration, the trustees! (forgodssake), the student, the student body, everybody except perhaps ourselves.  If there is blame, blame the lawyers. And then, let us move on.  I am at this moment reading Bernie’s second book on the Neutrality Trap.  It resonates. I’m a lawyer who spent a career representing mostly incompetent people and negotiating on their behalf with the devil.  

I am also a lawyer who is a sometimes client.  I’ll begin with that.  I was getting divorced. I was very angry.  I hired a lawyer. He is the guy who does divorces at a firm that formerly employed me.  I was somadsomad that I spent a long time schooling him on the narrative of my failed marriage. I have a small gift for framing narrative, suffiicient to draw him in.  And, in error, he let me run my own divorce. It was a buzzsaw.  After flaying, I fired him and hired another guy. The new guy attended the first negotiation after disaster, and came back to me with almost exactly the same property-custody proposal I previously rejected. In a greatly humbled tone, I began to tell new guy what was unacceptable in the proposal. He interrupted me and said, “Sign your name.” And I did. And from that precise moment, I started “winning” the underlying war.  (Winning in this context can only go “inside” boxes.)

The experience led me to articulate what, over decades, I had been learning: A lawyer can be sympathetic, but not empathetic. Empathy is too close to subjectivity. What a client most needs from a lawyer is objectivity, always objectivity; sometimes sympathetic, sometimes blunt.  This is not easy to learn to learn. Bill Clinton’s lawyers would have done great service had they used blunt objectivity in analyzing the risk of defending a frivolous lawsuit brought by Paula Jones. Blunt objectivity is what Ralph Shapira did when he counseled a billionaire client.
  
From 1991 to 2012, my clients included people locked in intensive treatment units in mental hospitals. I had a statutory mandate to “secure and advance” the civil and special rights of people with mental illness.  It was a wonderful job.
 
Narrowly speaking, I occasionally assigned myself the to the “commitment calendar,” which happened every Friday in a courtroom closed to the public  (Typically I assigned it to junior staff.) This is a forum that can teach objectivity.  What a civil commitment client usually needs to hear from their lawyer is that they are diagnosed with a psychotic illness; that there is strong evidence to support the diagnosis; that a doctor will testify under oath to the diagnosis; that there is not a doctor within five hundred miles who would disagree with the diagnosis. And finally, the doctor will ask the court for permissions to involuntarily administer antipsychotic medication—Because the benefit of quelling psychotic thoughts outweighs the risk of taking a horrible tranquilizer. Intended to tranquilize your brain to the point where it amputates your personality. (Unlike side effects: dry mouth, akathisia, drooling, dyskinesia, the intent of the medicine is to tranquilize your ego in the direction of oblivion. So you can better organize your thoughts.)

I also told them precisely how to win their hearing: Acknowledge the medical diagnosis. Assert your full awareness of the risk and benefit of antipsychotic medication. Iinsist that your rational choice is to refuse medication and stay in the hospital until you stabilize without medication. Almost no one acted on that advice. Now, turning to Gibson’s.

It was the lawyers that failed.  Oberlin should sue them for malpractice.  The lawyers let the college sedduce them to see this as a free speech case. It was not.
  
It was a case of reckless participation in an economic boycott of a small business that does the best it can to survive in a college town. At the moment a $5M settlement was in reach, the lawyers should have said “sign your name or we quit.” "Sign your name or you have an irreconcilable conflict with your lawyer."  This is NOT a freedom of speech case; it never was.  What Oberlin did is a tort that should be settled at the lowest possible cost to Oberlin.  $5M is a bargain. Take it or change lawyers.  This is what should have happened. As Shakespeare said, “I blame . . .”

Case settled. Fox News suspends its slur campaign.  Everybody moves on.
  
I for one am going to donate a thousand dollars of my meager estate in gratitude for four years at an institution that began with an idea: All people are created equal.  Thank you Oberlin for making us all into idealist cranks in the world beyond campus.  Next time hire lawyers who cannot be seduced by your idealism. And why not sue the ones you engaged?
 
Does anyone desire that I elaborate upon the bluntly objective analysis Bill Clinton’s lawyers failed to provide him? Just ask. 

Steve Kravitz

 Forrest Gump best summed up this sordid affair when he said, more than once:

"Stupid is as stupid does."

Moe, Larry and Curly would have done a better job.

What was afoot here?  What allowed supposedly intelligent college administrators to enthusiastically participate in the destruction of a venerable Oberlin business and the villifying of its owners without first learning the facts? This was nothing more than a lynch mob. "Shoot first and ask questions later."  Right out of Gunsmoke reruns.

Then, when offered a relatively inexpensive way out, they passed on it.  Even now they still think they were right.  Why can't they admit that they were wrong?  What is going on here?

Pursue a legal malpracice action?  I don't buy it.  Why do we, attorneys, always get blamed anyhow?  It's just a copout which will give the real villians a pass.  

Reed is right. The foundation of Oberlin is that all people are created equal.  Unfortunaely, that foundation is cracking. That's not how the administration and the students treated the Gibsons.

What to do?  Well, I think that we should insist on meeting with President Ambar and other administrators at our spring reunion. We should be given a full explanation of why this case was allowed to drag on so long, why the five million dollar settlement offer was rejected, what is being done to prevent another out-of-control frenzy from happening again, why they still think that they were right, and are any of the perpetrators of this mess still working at Oberlin. 

I also think that we should be given the opportunity to question the trustees to find out why they didn't put a stop to this when they had the chance. This could easily be done on-line. 

Oberlin means a lot to me. I met wonderful people. It pushed me to achieve more academically than I ever thought I could do. What happened was not my Oberlin. I don't want to ever see something like this happen again.

Steve Kravitz

Ralph Shapira

Reed:  Interesting post, both about Gibson’s and about yourself.

I liked your sympathy/empathy analysis.  I liked learning more about you.  Great to hear that you loved your work.  I’d like to hear your Paula Jones opinion.

Your “sue the lawyers” prescription doesn’t consider the possibility that Oberlin’s outside counsel gave good advice but the college rejected it, as your clients often rejected yours.  We just don’t know the facts.  And as one who has defended legal malpractice suits, the decision whether to accept a $5 million settlement proposal is a question of judgment.  $5 million is a lot of money.  Given the facts, I would have advised Oberlin to take the deal.  But even if the lawyers [stupidly] counseled rejection, I doubt that such advice could support a malpractice claim.  Competent counsel might reasonably have thought they could do better than that at trial.  A trial loss as catastrophic as Oberlin ultimately suffered, while of course theoretically always a risk, was not a reasonably forseeable outcome at the time Oberlin rejected the mediated settlement proposal.

Peter Griswold

I am appalled at the size of the settlement, and agree that Oberlin, in refusing to settle, greatly underestimated the weakness of their initial position, and the ungliness of some of the statements and e-mails that may have increased the size of the punitive damages.  I am confused confused.  I don't fully understand the contention that this case of Gibson's versus Oberlin was not about free speech.  No one appear to be claiming that the students' protest was illegal.  The students were exercising their right to free speech.  Why would Oberlin be held to account for supporting the students' right to exercise their right to free speech?

Ralph Shapira

Answering Peter:  The students were not sued, and no one at trial challenged the students' right to speak out against Gibson's.  It could have been otherwise.  There is no free speech right to make untrue, slanderous statements or circulate written falsehoods about another person or company if the target is injured as a result.  The First Amendment does NOT protect libelous speech.  So no, the students were not exercising their free speech rights.  If Gibson's HAD sued students who claimed it was racist and had a long history of racial animus, they might have won and gotten judgments against them; the students would not have been able to avoid liability by asserting First Amendment rights.  But Gibson's didn't go after the students, probably because it would have made them even more unpopular on campus and because the students wouldn't likely have had the money to pay any judgments against them.  Because libel isn't free speech, the college wasn't found liable for supporting the students' free speech.  What Oberlin was found liable for was its own dissemination of untrue statements about Gibson's [e.g., Dean Raimondo handing the students' libelous flyers to a reporter and distributing stacks of them to others], for wrongfully cancelling its business with Gibson's, and for aiding and abetting the students' defamatory conduct.

Ralph Shapira

One further clarification.  "Boycott Gibson's" is free speech.  "Gibson's is racist and has a long history of racial animus," if untrue, is not free speech -- it is actionable slander (if spoken) or libel (if written).  Slander and libel are the two kinds of "defamation."  The First Amendment does not protect defamation.

Ralph Shapira

Here's another clarification.  "The Gibsons are a bunch of jerks" is a statement of opinion, which cannot support a defamation claim.  Only a false statement of fact is actionable as defamation.   "The Gibsons are a bunch of jerks and you shouldn't shop there" is a combination of opinion and free speech -- again, not actionable.  I'm sure Oberlin argued that "Gibson's is racist" was a non-actionable statement of opinion, and in my mind that's a close call; the judge felt otherwise.  But "Gibson's is racist and has a long history of racist behavior" looks more like a statement of fact, which if untrue would (and did, in our case) support an actionable defamation claim.    

Robert Baker

I completely agree with these last three posts from Ralph. They explain the legal issues succinctly. What's unclear is what legal counsel advised the Board about the situation. Either the Board refused to follow legal advise, or that advise was incompetent. Only the Board knows which is true. 

Robert Baker

Actually, legal counsel also knows; but they are not allowed to divulge their advise without permission from the Board. 

Robert Baker

*advice. (In both posts)