Colleges Should Pay Heed to Oberlin’s Costly Libel Case
(Bloomberg Opinion) -- If colleges still thought there was little risk in taking up their students’ causes, they should reconsider in light of what has happened to Oberlin College. An Ohio appeals court has upheld $30 million-plus in damages in a lawsuit against the school brought by a local bakery that was accused of a history of racial profiling.
The case has gotten lots of attention as a touchstone in the culture wars and because of the free expression issues surrounding it. Although the case could still be appealed to the Ohio Supreme Court — and even conceivably to the U.S. Supreme Court — it is now possible to derive some hardheaded lessons from the process thus far. For one thing, universities need to be extremely careful about how they interact with student protests if they want to avoid being held liable for their students’ words and actions.
For another, the First Amendment isn’t as protective of protest as you might think. It doesn’t protect libel — so protesters (at least those with assets worth pursuing) need to be cautious about putting into writing factual claims that are demonstrably false.
The facts of the case are, of course, contested, so I will summarize them only briefly, essentially as the trial court found them and as the state appellate court described them. I can’t vouch for what actually happened on the ground.
In brief, on Nov. 9, 2016, the day after Donald Trump was elected president, three Black Oberlin students, one male and two female, were shopping at Gibson’s Bakery, a 130-year-old establishment near campus. Allyn D. Gibson, the grandson of the bakery’s owner, was working the cash register. Believing that the male student was both using a fake ID to try to purchase wine and simultaneously shoplifting several more bottles in his jacket, Gibson confronted the student.
When the student ran out of the store, Gibson chased him. They ended up in a “physical altercation” in which the two female students joined. When the police arrived, they arrested the three students, all of whom later pleaded guilty to misdemeanors.
After the incident, some 200-300 Oberlin students gathered to protest outside the bakery. A flyer was handed out — the court did not purport to know who wrote it. It called for a boycott of the bakery calling it “a RACIST establishment with a LONG ACCOUNT of RACIAL PROFILING and DISCRIMINATION.”
Oberlin’s dean of students at the time, Meredith Raimondo, was at the protest. The jury heard evidence that she had at least one of the flyers and that the associate director of Oberlin’s multicultural resource center had handed out a copy; that the flyer was xeroxed by the university employee in a campus copy room; and that the college aided the protests by providing a room in a nearby building for students to take breaks and get coffee and pizza and by reimbursing a student the money she spent on gloves for the protesters.
From the standpoint of the law, these activities were, the appellate court held, sufficient to treat Oberlin as having “published”— that is, repeated — the false and defamatory claim in the flyer. To make matters worse for the college, the student senate passed a resolution that repeated some version of the accusations. A copy of the resolution was posted in a display case in a university building.
The court held that the jury could have attributed these actions to the college, another basis for holding it liable for defamation. What was more, the jury heard evidence that Raimondo interfered with the business relationship between the college’s caterer and the bakery when she told the caterer not to buy its goods. The jury then determined economic and punitive damages, and the trial court awarded attorneys’ fees to the bakery.
All this matters tremendously to other colleges and universities, especially liberal arts colleges where students and faculty tend to be left-leaning and protests are not uncommon. The idea that a few copies of a flyer being handed out by an administrator plus a student senate resolution could translate into millions of dollars of damages seems astonishing on its face. It’s a stark reminder that college employees acting in the course of their jobs can put the school into substantial legal jeopardy.
The court noted that the Oberlin dean’s job formally included an obligation to attend student protests. By participating, Raimondo legally affiliated the college with the flyer without vetting its content, as far as is possible to determine.
From a First Amendment standpoint, you might think the loose language of the flyer would deserve protection. But as a matter of First Amendment law, libel isn’t free speech. And if you’re libeling a private citizen, not a public figure, it’s no defense that you acted without malice. If your statement was false and defamatory, you are liable — full stop.
The court stressed that the student protesters’ free speech rights were not in question. Technically, that’s true. The bakery didn’t sue the students. But in principle, the students, too, could have been sued, provided they could have been linked to the flyer.
As for the student senate statement, it also seems shocking as a matter of the First Amendment that it could be attributed to the college. Yet as the court pointed out, Oberlin created and funded the student senate, and also allowed the resolution to be posted.
After the lawsuit was filed, the dean told the students to take down the resolution and they did so. The court said that because the students complied, it showed that it was in the college’s control all along.
Again, as a matter of straightforward libel law, nothing is inherently surprising about finding the resolution to be attributable to the college. It’s just that, on campus, no one really thinks of student senate resolutions as the college’s speech.
The real-world takeaway is that colleges and universities need to understand that what administrators, faculty and students do and say can have costly legal consequences: $30 million is not a trivial sum for a college. Oberlin’s $1.2 billion endowment, large-ish for a liberal arts college, probably generates 4%-5% of that for spending every year. The damages and attorneys’ fees will be felt by everyone on campus, at least for a time.
Oberlin could appeal again to the state supreme court, but there is no particular reason to expect a different result. The U.S. Supreme Court would be unlikely to take the case, which depends on particular facts and does not pose a novel First Amendment law question. The result may be a settlement in which the bakery gets some of its money faster in exchange for Oberlin not dragging out the process with more appeals.
Regardless, the presidents and general counsels of colleges and universities all over the country should be watching and learning. Free speech is not always what it seems — at least when the law of libel is in play.
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This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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