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August 20, 2019

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Schraubd

It is surprising -- but then, also not at all surprising -- that this article doesn't at all address the serious free speech implications of this verdict on college campus activities.

It is quite clear that Gibson's was treated poorly by the Oberlin community. That said, the evidence that Oberlin College orchestrated these protests in an unlawful fashion is thin -- not non-existent, but thin. A good chunk of the evidence, for example, seems to center around Oberlin administrators not affirmatively tamping down on campus protests. But of course, had they done so, that would have been its own free speech problem. I'm not saying the administrators comported themselves ideally here; some of the texts by Raimondo are incredibly bratty. But I sympathize with some of their conduct -- it is appalling to me that "helping pass out fliers" or "allowing students to use campus copiers" or "staying silent and not intervening during student protests(!)" should generate tens of millions of dollars(!!!) in damages.

At the end of the day, the critical question to be asked following this verdict is "how will university administrators respond to student speech under the shadow of potential 8-figure liability judgments, in circumstances where their conduct is likely to be evaluated by an extremely hostile jury which probably doesn't care about the college's concurrent obligation to respect student protest rights?" The answer is likely to be that they'll err on the side of "caution", which is to say on the side of speech suppression, which then in turn opens them up to liability for THAT suppression, which ends up placing them in an impossible situation.

When the verdict came down, I wrote on these problems here: https://dsadevil.blogspot.com/2019/06/on-oberlin-verdict.html

PaulB

Prof. Schraub appears not to have read Prof Socher's article. His blog post that he links to was written immediately following the trial so that can be excused for making claims that the school was punished for libelous remarks and behavior by its students. It's now two months later and it has become obvious to all that the behavior by Oberlin's administrators go far beyond being "incredibly bratty." Third party witnesses testified that Dean Raimondo and others played a central role in organizing and supporting the demonstrations, and using its muscle to attempt to intimidate the family that owned the store.

Notwithstanding ongoing complaints (some justified, others much less so) by conservatives about college administrations, the Oberlin situation still looks pretty unique and is unlikely to lead to a wave of follow on lawsuits. Hopefully, it will at least make deans think twice before trying to get in front of student and faculty activists on each and every cause of the day.

Steve L.

David: That was Oberlin's defense (it was also Gawker's defense in the Hulk Hogan case), but I wonder how much of your concern is related to the size of the judgment, rather than the liability verdict itself.

In any case, some of your facts are incorrect or understated. You wrote: "we should wonder whether claims of racism--an evaluative opinion--can qualify as libelous, though in context it's arguable that here it was an opinion based on undisclosed facts."

Actually, the flyers said that Gibson's had a long history of "racial profiling," which was a factual claim and not an opinion.

You also wrote: "The administration let students use the copiers. They didn't censor the student government (an independent body) which issued a condemnation of the bakery. Administrators were 'present' at the protests and didn't try to shut them down. One reportedly helped pass out fliers."

Actually, the administration offered the copiers and provided food and gloves to the picketers. Several witnesses testified that the dean of students passed out the defamatory flyers, and the jury believed them, so I don't think it is fair to say that it "reportedly" happened.

No part of the plaintiffs' case consisted of failing to censor the student government or not shutting down the pickets. Failure to apologize, however, is a pretty standard element of a defamation claim, so the "bratty" emails were clearly relevant.

More significant, I think, was the disastrous litigation strategy followed by the defense, which included presenting an expert who valued the Gibson's business at only $30,000, and assigned zero value to the five generations that had kept it going for 125 years. That clearly outraged the jury, which led to the stratospheric verdict.

anon

In the absence of evidence, like interviews, a bald statement about upon what the jury based its verdict is unfounded. The word "clearly" is clearly inappropriate in such absence.

That said, as long as we are speculating about a big verdict, I would say that this instance illustrates quite clearly the inability of the left to see how outraged the rank and file of this country are by its obnoxious and constant accusations.

I just read an account of this incident in pj media, which appears to be far more informative than anything written above. That story states: "After the incident, protests against the bakery began with protesters chanting, “Gibson’s is racist,” and carrying signs accusing the bakery owners of white supremacy."

pjmedia [dot] com/trending/the-struggle-continues-oberlin-college-may-not-be-done-with-gibsons-bakery-just-yet/

The left has no problem constantly denigrating persons on the basis of race, so long as that race is "white." The left has no problem denigrating persons on the basis of gender, so long as that gender is male. The left has no problem denigrating persons on the basis of religion, so long as that religion is "Jew."

The left has no problem accusing all "white people" of racism, when those charges only evidence the obvious obverse is true. The left seems to have no clue how their constant false accusations and their racist and divisive ideology and language is perceived by most of the rank and file in this country.

The left can't understand that the venom in which they specialize -- venom intended to divide people as their quite open and obvious election strategy -- is just as repugnant to most rank and file in this country as any other rhetoric.

If the left wants to lead to a place that is less hateful, then it needs to stop fostering racial, gender and religious hatred, in so many ways.

Let the judgment stand as a reminder. But, alas, there seems to be no way a leftist will ever understand what likely truly outraged the jury.

Nona

I implore the Left NOT to abide by anon 10:51pm's suggestions and to continue on its current trjectory.

In advancing an identity politics agenda it never occurred to them that there would not only be a backlash, but that white people who otherwise didn't actually think along such lines would begin - nay, even be pushed by the Left - to do so (and so begin to sympathize with identitarian-type groups.) (It also never occurred to the Left what the effects might be abroad, e.g., serve as a significant DETERRENT from others adopting liberal multiculturalism, or as a basis for their discarding it.)

Once the heretofore Democrat-voting white working and lower-middle classes fully come to realize that their political party aims to doom their own children, by prioritizing (1) mass unskilled immigration and (2) minority group placement of work and higher education (the main ticket to socio-economic advancement,) the response will be unlike anything this country has ever witnessed. These are very exciting times, regardless of which garbage party wins the next election.


Schraubd

I have no idea what it means for the administration to "offer the use of campus copiers" beyond "allows students to use the copiers." At most campuses, and especially small liberal arts colleges, students use these sorts of shared campus resources all the time, for all manner of reasons (even if something is formally for "administrators"). It is easy for me to imagine a circumstance where a campus where it was pattern or practice to allow copiers to be used by students suddenly falling back on some dusty never-enforced handbook policy saying "these copiers are for administrators only" when an unpopular (conservative) student group asks to use them, and getting excoriated for it.

That said, yes, the size of the verdict is the big issue here, and it is one that I think is far-and-away motivated more by a generic antipathy towards the collegiate left than it is a tailored assessment of Oberlin's legally wrongful conduct in this case. In particular, I don't think the evidence suggests that Oberlin-qua-Oberlin played anything but a marginal role in the development of the protests, and the stitched-together testimony of things like "they gave them food and gloves" and "they helped pass out the fliers" doesn't sway me. Now you could say, "it swayed the jury, and that's what counts", but again, my point is that faced with the prospect of a jury pool that's overtly hostile to academia, don't have a strong commitment to free speech norms (including risible speech they detest), and don't have an appreciation for how academic institutions do and don't relate to their student's extra-mural speech presents a huge risk of imposing liability regardless of whether the college acted reasonably or not, the massive judgment here is most likely going to produce a chilling effect.

J. Bogart

Schraudd:
What is the basis for you description of the town and jury pool?

Doug Richmond

It is stunning that the college apparently has not removed Dean Raimondo from her administrative role (I understand her to be a tenured faculty member, so she can't be fired outright) and has not fired the other administrators whose behind-the-scenes activities and email messages and other communications fueled the college's liability. Other reports suggest that the new Oberlin president continues to play the victim card. Sadly, a $33 million punitive damage verdict failed to impress upon Oberlin the outrageousness of its students' and administrators' conduct.

r

There's a lesson to be learned here, but you'll never learn if you just blame the jury pool. That's like blaming the professor for a bad grade in class. The sympathy for Oberlin's victim posturing in the face of its unlawful and outrageous conduct is nothing but counterproductive.

"a jury pool that's overtly hostile to academia, don't have a strong commitment to free speech norms (including risible speech they detest), and don't have an appreciation for how academic institutions do and don't relate to their student's extra-mural speech"

anymouse

"stop digging"

That can be applied to Oberlin and to someone on this thread.

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