BY JOHN K. WILSON
This afternoon, Oberlin College was hit by a jury with $33 million in punitive damages added on to the June 7 judgment of $11.2 million for defamation. (The punitive damages will probably be reduced to $22.4 million under state law, but perhaps $10 million in plaintiff legal fees will also be assessed to Oberlin.) This massive ruling of over $40 million is a dangerous attack on freedom of speech and academic freedom. Although I can hope the judgment is overturned on appeal because the case does not come remotely close to meeting the legal standard of defamation, it is an alarming example of the attacks on higher education and free speech in America
The story began on November 9, 2016, when an Oberlin College student went into Gibson’s Bakery, tried unsuccessfully to buy wine with a fake ID, and then shoplifted it. When Allyn Gibson physically stopped him and put him in a choke hold, the student (and two other Oberlin students with him) began punching Gibson, and the three students (all African-American) were arrested. Some Oberlin students claimed Gibson’s bakery was racist, held a protest of 200 people at the store for two days, and called for a boycott, which the Student Senate endorsed in a resolution. Gibson’s Bakery never sued any of the students who called them racist, preferring instead to go after the deep pockets of Oberlin College on the questionable grounds that they supported the accusations of racism.
So why did the jury rule against Oberlin? The primary reason is that Oberlin students behaved disgracefully, only to be exceeded by the incredibly stupid and repulsive actions and comments by Oberlin administrators. Protesters demanded a boycott over a case where the Oberlin students were clearly guilty (and later pleaded guilty) and there was no evidence of racial discrimination. They made accusations of past racism, but never presented any convincing evidence publicly. Oberlin’s administrators were even worse. They hurt Gibson’s business by refusing to stand up on their behalf and by boycotting the bakery for a time. They tried to intimidate Gibson’s into dropping charges against the Oberlin students by threatening to continue their boycott, and even asked the bakery to call the college rather than the police when students shoplifted in the future. And Oberlin’s administrators sent each other very dumb messages that alienated the judge and jury so much that the actual legal regulations about defamation.
As conservative legal scholar William Jacobson wrote in the Wall Street Journal, “The jury held accountable an unhinged progressive activist college that lost concern for the lives of working people in its community.” That certainly is what the jury did. But it’s not what the law allows. The law of defamation doesn’t let the government seize millions upon millions of dollars simply because a college is rich or unhinged or progressive or out of touch.
There are many reasons why the jury’s verdict should be overturned on appeal.
First, It is not defamation to call someone racist because it is a statement of opinion. And the statement about “ a LONG ACCOUNT of RACIAL PROFILING and DISCRIMINATION” is also a statement of opinion about a long period of time, but still opinion. If merely calling someone bigoted is considered defamatory if a jury disagrees, then a vast number of people could be subject to libel suits for their political speech. One can imagine the level of censorship required if every time a student, professor, or speaker said that some individual or company was racist, sexist, homophobic, anti-religious, stupid, or anything else negative, the college could be sued unless they took action to silence this speech. Statements about racism are an expression of opinion, and opinion is protected under defamation law.
Evan Gertsmann argued at Forbes that calling the bakery racist cannot be an opinion because “It is difficult to think of a more harmful accusation against a business today than accusations of racism and the court rightly rejected that argument.”
But that makes no sense. There is no connection between the level of harm in a statement and whether it is an opinion. Some opinions can cause serious harm, and some facts cause no harm. The test of whether something is an opinion depends on whether it’s an opinion, not the level of harm.
Gertsmann claimed that “calling Gibson’s racist and accusing it of engaging in racial profiling right after the incident with the three students is clearly accusing it of specific wrong-doing.” Once again, specificity and facts are two different categories. If the protesters claimed that arresting a black student was racist, that’s still their opinion about the facts in the case even though it’s an opinion about a specific event. If, hypothetically, the protesters had falsely claimed that the owner yelled racial slurs and said black people were banned from the store (which obviously never happened), that would be a fact assertion potentially subject to a defamation claim.
Second, Oberlin was wrongly banned by the judge from presenting evidence of racism at Gibson’s Bakery, which if true would have nullified any defamation claim. When Chris Jenkins, an associate dean for academic support and equity, testified, “I personally have had moments in the [Gibson’s] store where I didn’t feel comfortable …” according to Legal Insurrection, “At that the judge cut him off and told the jury to disregard.” The judge wouldn’t allow Oberlin to mention racial comments by Allyn Gibson on Facebook in 2012. According to Legal Insurrection, the judge didn’t want “students or administrators to use the witness stand to debate if Gibson’s was racist or not.” Considering that the alleged racism of Gibson’s Bakery was the basis of the defamation charge, it is bizarre for a judge to make the topic off-limits at the trial. By contrast, the judge openly allowed numerous witnesses to testify that Gibson’s was not racist.
Third, Gibson’s Bakery sued Oberlin on the theory that it was aiding and abetting defamation. Lee Plakas, the lawyer for the bakery, actually admitted that Oberlin didn’t commit the defamation, but “aided and abetted defamation, the same as one would in a crime.” Plakas told the jury, “If you’re an aider and abettor, whether it’s a crime or a civil wrong, then you have the same type of responsibility.” This is incorrect. There is no concept established in the law of “aiding and abetting defamation.” There is only defamation, which Oberlin clearly did not commit.
Allowing aiding and abetting defamation would be an incredibly repressive expansion of libel law. For example, under aiding and abetting defamation, someone alleging libel by a newspaper could sue not only the article author and the publisher, but also any retail outlet that sold a few copies of the paper. Allowing “aiding and abetting defamation” would be enormously destructive to freedom of the press in America.
The basis for that “aiding and abetting defamation” charge was incredibly weak. As Legal Insurrection reported, “There was testimony during the trial that Raimondo handed out at least one of the flyers and that the college facilitated the posting of the student resolution on campus.” Handing out a flyer to someone who asks what the protest is about is not aiding and abetting anything. And allowing a student senate resolution to be posted on campus is perfectly normal for any college. As Gertsmann noted, “The student senate is not controlled by the college and allowing the senate to post its resolution on college property is not tantamount to an official endorsement of that resolution. To hold otherwise would force colleges to proactively censor student governments.”
Legal Insurrection summarized the bakery’s legal argument this way: “The school did not initially ‘publish’ the material in question, but did help students distribute the defamatory material in various ways at and after the protest: punishing the business for not dropping the shoplifting charges against the three who plead guilty eventually, helping the students find “quiet space” during the protests and feeding them and buying them mittens, caving in to students who threatened to “stomp” on Gibson’s bakery items if they were still served in the cafeteria, and never putting out any statement that Gibson’s is not racist.” None of these things have anything to do with defamation, but they were used to smear Oberlin and create sympathy with the jury for Gibson’s Bakery. The notion that giving mittens to students is a form of defamation is incredible. And the idea that Oberlin was obligated to publicly.
Oberlin lost this case in a classic example of town vs. gown. But being pissed off at the local college is not a valid legal doctrine for taking millions of dollars. The judge even allowed the testimony of 90-year-old Allyn W. Gibson, with a walker and a neck brace, who recounted how six months after the protests he heard a banging on his window, saw a car in the parking lot, and then fell down and broke his neck. This testimony was allowed because the judge had also admitted testimony by employees who said their tires were slashed and some people made nasty comments to them. None of this has any connection to a defamation claim against Oberlin, but it certainly created sympathy among the jurors for the bakery and anger at Oberlin.
The trial also created the expectation that Oberlin was guilty of defamation because they failed to denounce the students. A police officer, Victor Ortiz, testified, “I didn’t see anyone trying to calm the students down at all.” He added,“Didn’t see any of them instructing the students not to use curse words and didn’t hear any of them tell their students not to shout that Gibson’s is racist.” Of course, it would have an appalling act of censorship for a college to ban their students from uttering the word “racist” at an off-campus protest. But because Oberlin failed to denounce its own students, it was held guilty for what they did. David Gibson testified, “Without [Oberlin College] coming out and offering a message that we were not racist, it was going to go on forever. They caused this thing, and they needed to step up and do the right thing.”
Plakas said, “Would it have killed Oberlin College to stand up as an adult and say, ‘We got it wrong; our students got it wrong? We shouldn’t have rushed to judgment?’” Plakas declared in his closing argument, “If it wasn’t for the arrogance of this powerful institution we wouldn’t be here. We must care when powerful institutions don’t care enough. You can tell them loud and clear that their behavior has to change.”
Gibson’s Bakery won this case by depicting Oberlin College as an uncaring bully, but these arguments have no legal merit. Their lawyer used a repulsive and stupid email written by the inept Dean of Students Meredith Raimondo that said about a professor critical of Oberlin’s action, “I’d say unleash the students if I wasn’t convinced this needs to be put behind us.” Plakas asked during the trial, “Did the school unleash the students like a pack of wild dogs on the Gibsons and can’t admit they are wrong for doing that?”
This kind of imagery—black students as dumb wild dogs obeying the commands of Oberlin administrators—was at the heart of this case. Gibson’s Bakery promoted the idea that Oberlin was secretly controlling the students as part of a bizaree plot against the bakery (their initial complaint contended that “Oberlin College Covets Gibson’s Well-Situated Land”).
One lesson for colleges from the Oberlin ruling is that they need to eliminate all regulations on defamation in their campus codes of conduct. That may seem strange, but in this case one of the factors used against Oberlin was its campus policy. The Bakery’s complaint declared, “Oberlin College provided the Student Senate with assistance and encouragement even though the Student Senate’s actions violated the Student Code of Conduct, which prohibits defamation, libel, and slander and which classifies said conduct as constituting harassment.” The Bakery’s lawyer argued that because Oberlin banned defamation, it was obligated to take action against the student protesters to stop them from defaming the bakery. Oberlin’s student code of conduct does indeed list “Defamation, libel, or slander” as examples of harassment. Colleges need to remove defamation from student codes of conduct or risk greater liability.
Nothing the Oberlin students did was defamation, and certainly nothing Oberlin administrators did qualifies as defamation. The jury was clearly swayed by emotional appeals of a David vs. Goliath case. It’s true that Gibson’s Bakery suffered terrible economic harm from Oberlin and its students, and so far no one has presented any serious evidence of racism by the bakery. But not every injustice in the world should be cured with a lawsuit, especially not a defamation lawsuit. A private individual, and a private college, can boycott anyone they want to, even if they are morally wrong to do so. Allowing colleges to be sued for the offensive language of their students creates a terrible precedent that will not only harm colleges but give a legal rationale for massive censorship. Gibson’s Bakery also argued that Oberlin was liable because faculty were present at the protest and one wrote something critical about the bakery, which puts academic freedom in jeopardy.
Ironically, a Fox News story about the libel verdict actually concluded by discussing Donald Trump’s Executive Order “that threatened to withhold funding from universities if they refused to protect students’ rights,” apparently unaware that Oberlin lost this libel suit because it failed to silence its students and infringe upon their rights.
And that’s the great danger of this ruling. Colleges will face legal liability for the opinions of their students and faculty, unless they decide to censor them. That’s why the Oberlin College defamation ruling is so threatening to free speech and academic freedom.
It’s about time that phony “P.C.” colleges have to pay the piper for their automatic knee-jerk reactions to situations that are still in flux. Whether Trump’s executive order was cited or not does not change the fcats of the case.
Playing the race card — unless justified by the facts — SHOULD not be acceptable. I wish that MY case had come before a jury, but I do not have the financial wherewithal to mount a lawsuit against CCNY. Read all about it here:
https://www.academia.edu/23593134/A_Leftist_Critique_of_Political_Correctness_Gone_Amok_–_Revised_and_Updated
Should private companies (such as Donald Trump) have to “pay the piper” with millions of dollars if they have a knee-jerk reaction to something? It seems to me that the proper solution is to criticize people who say bad things, not to have the government (or lawyers) take their money. Surely there are some racists out there (for example, Donald Trump). Trying to ban talking about racism is a dangerous power to give to anyone. I think people should be free to say what they want, without a court deciding who is justified to speak.
As you well know, there are a few exceptions to the First Amendment — i.e., incitement to riot, screaming “Fire” in a crowded theater (when there is no fire), etc. One of the exceptions is Libel and that is precisely what Oberlin was charged with and paid for.
I am an almost absolutist about Freedom of Speech so in theory I might even agree with you that “people should be free to say what they want, without a court deciding who is justified to speak” but until Libel laws are eliminated those who falsely ascribe racism to people or businesses will have to pay the piper.
Why don’t we get together to eliminate Libel laws? That way you can continue to (boldly) call Donald Trump names, if he ever ceases to be a public figure (an exception to the Libel statutes).
Except Oberlin didn’t commit libel. Their students (arguably) did. The proper parties to sue would have been the students, not the University. They are not responsible for what their students do. Their students are independent adults.
“Oberlin College tried to sacrifice a beloved 5th-generation bakery, its owners, and its employees, at the altar of political correctness in order to appease the campus ‘social justice warfare’ mob. The jury sent a clear message that the truth matters, and so do the reputations and lives of people targeted by false accusations, particularly when those false accusations are spread by powerful institutions. Throughout the trial the Oberlin College defense was tone-deaf and demeaning towards the bakery and its owners, calling the bakery nearly worthless. The jury sent a message that all lives matter, including the lives of ordinary working people who did nothing wrong other than stop people from stealing.”
Research the story a bit more. Oberlin put out flyers stating the business was racist, with a long history of discrimination. Tours by the college described the business as racist.
You are NOT following the this case very well. A school administrator handed out a flier calling the Gibson’s racists. Then she lied about it in her deposition and then changed her story. You simply cannot hide the reality that Oberlin stoked the fires and then cancelled the food contracts with them. Then Oberlin offered to reinstate the contracts if Gibson’s would stop having Oberlin student/criminals arrested for shoplifting. You will find a solid summary of all of the testimony on legalinsurrection.com. When this started I was a supporter of Oberlin. As evidence was presented it became clear that Gibson’s was wronged by Oberlin and it administration.
I completely agree that Gibson’s was wronged by Oberlin and its administration (and the student protesters). But that doesn’t mean they were defamed. Private colleges are free to stop serving food from any company they wish (no contracts were violated by Oberlin), and to stoke any fires they want to. But a flier calling somebody racist isn’t defamation. And giving someone a copy of someone else’s flier is not an act of defamation. Simply because Oberlin did bad things and caused harm to a bakery is not evidence of defamation.
Incorrect. The dean and many of the professors handed out “Gibson Is Racist” flyers and showed up at the store with bull horns.
Nobody outside the jury room knows how the $11M judgment was determined. There were other causes of action in the lawsuit besides defamation, but everyone fixates on that. Among other claims pleaded by the bakery, the jury also found Oberlin liable for intentional infliction of emotional distress & interference with economic interest. We dont know how much of the $verdict was attributable to libel, but liability for those other two torts is hard to deny and figures mightily into the calculus….
D – The Oberlin admin lead the charge against the bakery, and in private messages, they clearly knew that the implication of racism most definitely harms businesses, and they used this to further their own goals, and take heat off their own alleged racism. “…unleash the students…” That message was shown to insinuate their knowledge of how this type of tactic is both effective and affective lol! Admin also tried to block reporters from covering the mob, and threatened someone for trying to take pictures. The admin clearly knew what the implication of racism would do to that bakery, and they lead the students in these actions. Of course, if you pretend to think “support” doesn’t mean “support,” you could possibly feign ignorance too lol. There is clear evidence that Oberlin was using the bakery as a scapegoat to redirect the implications of Oberlin admin being racist themselves. I would like to see how these allegations from last year negatively harmed Oberlin, because if these allegations show a negative recourse to the students statements, Oberlin would be in a lose-lose scenario. Lastly, if the college wanted to get out of this mess, all they had to do is condone the statements being made about the bakery, but they chose to not relent. All they had to do is state the bakery wasn’t racist, or racially profiles, and they would have avoided litigation. The time has already came and went for Oberlin to fix these issues and move on, and that is by Oberlin’s fault.
And I wonder what you posted when you found out Obama had been a member of a viciously racist church for nearly 20 years?
Since Obama was my teacher in my “Race, Racism, and the Law” class and I wrote a book about him, I can tell you exactly what I wrote in Barack Obama: This Improbable Quest. On page 74, “It’s not racist for a black church in a black community to talk about helping black people.” And on page 75, “For Obama, joining a church isn’t an expression of fervent belief in every doctrine espoused by that church. It’s an opportunity for him to hear another point of view.” I fully support your right to express your opinion that Trinity United Church of Christ is racist, and I don’t believe anyone should be able to sue you for calling a private institution racist, even if I think you are wrong, and even if you protest in front of it and cause it financial and reputational harm.
Re.: “It’s not racist for a black church in a black community to talk about helping black people.”
Talk about “alternate facts” and “spin”! Is that really what Rev. Wright was up to? And if Obama wanted “to hear another point of view” would he have been praised for attending a Klan rally?
I’m certainly not going to convince you, John K. Wilson, that your perceptions of the world are so imbued with what Karl Marx called “false consciousness.” I am therefore dropping out of this discussion, except to read my sane colleagues’ responses to your rhetoric.
Oh, and of course, I’ll defend to the death your right to say it.”
Oooh, so now you like “other points of view”? What … no pepper spray, smashing cars and windows, cracking heads open with bike locks and blocking traffic so “working people” can’t get to work?
Lordy, you are so confused.
What’s the price tag, though, for falsely being labeled a racist, and that false label getting your business (and you) harassed, and losing revenue because of it? Claiming racism without proof can destroy lives.
Based on what I’ve read, Oberlin had a chance to make things right, but refused to do so. Apparently, all they had to do is put out a public statement at the university that Gibson’s (and the owners of Gibson’s) isn’t racist — and they wouldn’t. Oberlin had a chance to get out in front of this, it seems, but didn’t.
Exactly. Oberlin had a couple years to make things right, and chose not to do so.
I find it remarkable that even attorneys seem to fail to recognize that if you misbehave badly enough, and your misbehavior gets before a jury, you will get a verdict like this.
OK, I fail to see your argument. You are saying that if someone uses their right to free speech to harm someone, there should be no legal recourse? What is the difference……A man yells fire in a crowded movie theatre when there is not one…people get hurt in the folly and rightfully so, that person would be held liable for the injuries and distress of people harmed in the fallout. A man makes a public claim to a community that a business owner is “Racist”. People come out with pitchforks and drive that person to financial ruin, creating emotional stress on him because he can no longer provide for his family. Why should these two examples be mutually exclusive. The simple fact is, if you are willing to read all of the facts (try the multiple posts in Legal Insurrection) Oberlin took a public stance and associated themselves as a community with the students and facilitated the faux rage. Their actions caused legitimate harm to the Gibsons. For that, they should be held accountable.
My guess is that your real concern is that this legal precedent potentially takes away the only effective tool of left wing zealots (the ability to close down discourse and stifle opinion by calling people names). This is a clear statement that the act of simply labeling people into horrific groups (racist, bigot, homophobe) without empirical evidence and claiming victimhood because you choose to be offended (although taking offense is an acton within itself) has gone on long enough. There are people who subscribe to the biblical definition to marriage who are scared to speak about where they stand. There are people who are pro-life that won’t speak their mind because they could lose their job. Is that what you call free speech?
Let the suit stand…..and if there are any people out there who have lost their job or positions of authority because they have been wrongly labeled or accused, I hope you are seeking legal counsel. My guess is the attorney who is representing the Covington kids is having an awesome week……….
I want everyone to have free speech, and you are sadly mistaken if you think name-calling is exclusively done by leftists. Consider this example: Suppose that pro-life students protest an abortion clinic off-campus, causing it to lose business. Suppose this protest accuses the abortion doctors of being “murderers.” This is a false accusation of a crime under the law, because abortion is not murder. Suppose the university is sued because this was a student group, and it supplied the photocopiers and sign-making materials, and failed to denounce the students. (We could even imagine it’s a conservative religious college that expressed support for pro-life students.) Do you think the opinion that abortion is murder should be defamation? Should a jury in a left-wing town be able to assess a conservative college millions of dollars in penalties because they disagree with the view that abortion is murder? I don’t think those statements should be punished as defamatory. And I also don’t think colleges should be held responsible for the speech of their students. How is my hypothetical situation any different from the Gibson’s Bakery case?
Isn’t your argument already a non sequitur since killing an infant, especially a full-term one, is already murder? Hence, the rightful protest.
Mr. Wilson, you are correct that name calling is not exclusive to the left. Anyways, the left seem to be the only ones who are currently escalating to violence in their political and ideological beliefs. Professors, celebrities and politicians that are prominent figures of the left are advocating for people to use violence in place of criticism and debate, and those of similar mindsets that listen/follow are doing just that. Towards the right, there isn’t such a call to action, there is a disdain for these actions entirely. I haven’t seen this reflected in any other groups, but I’ve seen more and more of this contempt the further left a group leans. I don’t expect you to answer this, as I know you’re busy, but if you could give your two cents on the issue it would be appreciated.
While the home break in that caused physical harm was not proven to be linked to the protests, the employees slashed tires or the implied property damage that would occur if someone would choose to take photos of the protests, after they were already threatened, cannot be ignored. I don’t believe Oberlin admins were the ones doing these things, but they were instigating these actions to occur none-the-less by their “support” and by their grandstanding amongst the students. The admin of Oberlin were shown to be in leadership roles of these protests, making the college responsible for the defamation that occurred. After all, Oberlin’s admins were being called racist by the students a year prior, and it looks like Oberlin used the bakery as a scapegoat to save face, and redirect the outrage.
I believe the law should be neutral in all respects (maybe leaning slightly to a Liberal perspective on compassionate grounds IMO lol), and I believe free speech should stay free. If rulings are based on ideological/political bias, our legal system is no better than mob rule. I don’t see how Oberlin would have received any other verdict if the lawsuit was held in a Liberal jurisdiction, nor do I see how that argument is relevant. Maybe towards Portland, or areas that have been inculcated by those infected by the hyper outrage culture that seems to be quite bigoted in nature, Oberlin would have come out Scot-free. At this point, the bakery would appeal, and they would be justified in doing so as our legal system instead would be seen as broken. Oberlin’s actions absolutely show malice and contempt towards those working at the bakery (even after the verdict, and also towards the jury), and the judges rulings were not of bias. Lastly, I don’t want to state your example over abortion is a straw man argument, as I believe that issue is just as important as free speech. Rather, I ask you to change your example towards something in regards to free speech to clarify your position, instead of a “gotcha” response in order to employ deceptive tactics once more to mitigate Oberlin’s faults. I believe this would help everyone commenting on all sides of this argument.
I think a great example towards defamation would be the lawsuit of Vic Mignogna vs Funimation, Jamie Marchi, Ron Toye and Monica Rial. This case has much in line with Oberlin’s, and if you take the time to follow what has taken place already, you’d see what defamation can do to not just a business, but the reputation of a person who’s built their brand on their own name. Sorry for the length, and looking forward to your response. Have a good day.
Cliff well said.
It is funny reading Wilson defend the aholes at Oberlin.
I just searched “Raimondo sacked by Oberlin” and stumbled across this rubbish.
Oberlin got what they deserve.
I bet lots of people are removing any reference to Oberlin from their resumes.
I read their insurance company will not cover the punitive damages.
It’s a beautiful world.
Are you saying Raimondo was sacked by Oberlin? Referring to your Google search. I didn’t hear that, not that I would shed a tear.
Unless, of course, the knee jerk reaction is pervasive, a complete lie, and comes with tortious interference.
Wow, you seem as strangely unaware of the facts of the case as the college administrators. The college took specific actions to punish the bakery. They stopped purchasing from a company they had done business with for a century. They threatened further economic damage if the bakery refused to yield to their demands (Report thieves to the college, not the police? What?). Administrators encouraged a ‘boycott’ of the bakery (specifically designed to inflict economic damage). The school did not at any time point out to their student body that the legal issues (theft and assault, for which the students plead guilty) had nothing to do with racism, and everything to do with clear unlawful actions by the students.
If the school administration has a lick of sense (and it is not clear they do) they will make a very generous settlement offer along with an abject apology, and forget the legal appeal….. an appeal which will cost them millions more in legal fees and which they will almost certainly lose. Unfortunately for the school, they probably think like you do.
I am aware of all these facts, and I have condemned Oberlin for its actions. But none of Oberlin’s actions are illegal. You are free to stop buying products from anyone, no matter how long you’ve been doing it. You are free to encourage a boycott of anyone. No one is obliged to point out anything to students.
This was (is?) a civil suit, so forget ‘illegal’. Was it a tort? You may be free to stop buying products from someone, true, but that does not extend to organizing and directing actions which disseminate injurious falsehoods about them.
What does Donald Trump have to do any of this. Does everyone on the left suffer from TDS.
So, Trump is a racist, because? His companies hire thousands of people of different races. He had people of different races on his TV show multiple times. His son-in-law is Jewish. Melanie is Slavic. You, of course, know him to be a racist.
The chapter on racism in my book, Trump Unveiled: Exposing the Bigoted Billionaire, details the overwhelming evidence of Trump’s racism. We can begin with him running the Trump family company when it was engaged in race discrimination. A former casino executive for Trump detailed many examples of his racism:
https://www.politico.com/magazine/story/2018/11/07/donald-trump-says-hes-never-used-a-racist-remark-i-know-different-222314
His willingness to allow black celebrities on his show (where he would fire them) is far from proof that he is not racist, as is the fact that he has a white son-in-law and a white wife, whom you apparently regard as less than white somehow. So yes, I know Trump to be a racist because the evidence says he is.
If the private companies knee jerk reaction causes demonstrable economic damage to the people they deliberately and maliciously libeled, then absolutely.
All the criticism of the world does not repair the damage Oberlin did to this bakery.
Also, stop conflating the government with lawyers. Libel laws are Constitutional, and private individuals have every right to sue when an organization intentionally lies about them.
You are free to say what you like, no court order was issued demanding Oberlin admit they lied about the bakery. Free speech does not shield you from consequences, if you want to act in a manner which constitutes a reckless disregard for the truth, you are free to do so. But you will still have to face consequences for that decision.
The author got it wrong. The college wasn’t protecting the students, it was assisting and encouraging the students and the boycott. The “administrator” distributed flyers claiming racial profiling and encouraging a boycott. The college threatened the business with the termination of long standing business relationships. The college was an active player, not a protector of student rights. And finally, how does a crime become racist, this started with a criminal act.
Robert Arnold, don’t forget that Oberlin admin were being called racist as well a year prior by the students. In my opinion, the admin chose to save face and redirect that label to this bakery. At first, this might have been simply to avoid being called/labeled racist, which is superficial and conceited in nature. But as the bakery pleaded with Oberlin admin to retract these statements, and clarify to the students that they are not racist, the admin were given the option to instill the students disdain once more to the Oberlin admin, OR protect their own vein interests and commit to this action of malice. Oberlin admin could have stayed out of the courtroom by telling the truth, but they passed up that opportunity, because they didn’t want the students calling them racist again! This defamation was Oberlin admins chance at gaining favor amongst the students, and show they are not racist by defaming the bakery they’ve been working with for a century! This is just my observation, but to think that people would stoop so low is mind boggling. The ruling is of tens of millions of dollars, all for Oberlin admin to not be labeled racist!!! Once the dust settles, and the feigned outrage towards the bakery subsides, you better believe those students will once again redirect their anger toward the admin regardless lmfao!!! The irony in this is just fanatical lol!
Thank you for this thoughtful analysis. Your article helps me understand the complexities of the case, which is certainly a complicated and unfortunate one.
Without taking a position on the underlying issue, I note that the slander charge survived a summary judgment motion. The judge’s decision is at the end of this LegalInsurrection post.
https://legalinsurrection.com/2019/04/putting-social-justice-warfare-on-trial-gibsons-bakery-lawsuit-against-oberlin-college-heading-to-trial/
It was entered into the record that the student tour guides were instructing their prospective students to avoid the bakery because the owners are racist. The jury did what it had to do to bring attention and fair warning to the runaway grievance campus culture train.
Are you claiming that the administration ordered student tour guides to call the bakery racist? Because there certainly wasn’t any evidence of that. The judge actually dismissed that allegation and it wasn’t heard by the jury because it was hearsay evidence from someone who had heard that tour guides had done this two or three times until Oberlin administrators stepped in to stop the tour guides from doing this. So the tour guides story actually refutes the claim that Oberlin’s administration was smearing the bakery as racist.
Were the students not agents of the university though? Isn’t the university liable for how its agents act, especially if the university was negligent in stopping them? The actions of non-employed students are a different matter, because they would not be agents, but tour guides would be employees of the university, and therefore its representatives.
The university did stop them when they found out about it, so there is no negligence. But it’s disturbing to say that a college has an obligation to censor any employee (including a professor) who says something controversial about someone.
Again, Wilson’s absolutist doctrine on Free Speech (which I ALMOST agree with) gets in the way of an accurate depiction of the incidents AND, more important, ignores existing laws against libel and slander. When demonstrably false statements are made about an individual or business, accusations that can have a measurable impact on one’s livelihood, then maybe society should provide a remedy for those so wrongfully accused.
Imagine what life would be like without the protection of libel and slander laws! Anyone could say anything about you and ruin your life, without any recourse. BTW, as I recall the University stopped doing business with the nearby bakery while shattering its reputation in the community. That is probably why the award was so high. (I’m sure Oberlin will appeal the amount and knock it down to $8-10 million.)
Finally, I’m surprised that the shoplifters did not claim that their confessions were forced out of them by racist cops with rubber hoses and sleep deprivation techniques! Maybe that’ll be the next phase of this saga…
I can imagine life without libel law, and I think it would be much better. Consider all the sexual abusers like Harvey Weinstein, Bill Cosby, and Donald Trump who kept their misconduct secret by using the threat of libel law to silence victims and journalists. Even in this case, under this ruling the bakery can now sue all the student senators who voted for the resolution that was deemed defamatory, and take damages from those students. Do you support that part of the law? When people try to eliminate criminal libel laws around the world, I’m sure somebody will say, “Imagine what life would be like if we don’t imprison journalists for saying false things about the government.” I say, we should imagine freedom of speech and not fear it.
It most certainly is not “disturbing.” It’s common practice for a business to “censor” its employees when they are representing and acting on behalf of the business. I’m not talking about what an employee does in their private life. I’m talking about on the job. If you go to Best Buy to buy something, and employee goes off and yells at you and calls you racist, and repeatedly does so everytime you go, that employee is fired. The business is expected to fire the employee. Employees do not have a first amendment right to say anything when they are on the job.
Meredith Raimondo was handing out the fliers. Again. Please make yourself familiar with the trial evidence before making comments based on emotion rather than knowledge of the case.
Maybe it is disturbing, John. But this is the world the left created. You would never have batted an eye if the races were reversed, and no one will believe you if you claim otherwise. So don’t now suddenly worry about the erosion of free speech. That train left the station a looong time ago.
To make this point clear, because it is so critically important: Title VII jurisprudence destroyed free speech a long time ago. Lets say someone thinks blacks are mentally inferior to whites. Free speech should allow him to say so, just like many people said this exact same thing for all of history prior to Title VII. Now though, because of the way that law has been interpreted, such a statement would be used against you as evidence of racism, and therefore any action you took could expose you to liability. And I’m just talking Title VII – race comes into play everywhere, as you see. (Same for gender issues, I’m just using shorthand.)
Point is, free speech is gone. I acknowledge there are indeed some positive aspects to that. Some aspects of society have improved at the expense of free speech. (Just like Dictatorships have certain benefits Republics don’t.) But I don’t think the positives outweigh the negatives. In any event, pious intonations of “free speech” in 2019 don’t fool anyone, and they come across as pure hypocrisy, which it is. If you want to lobby for the repeal of Title VII and a wholesale reevaluation of free speech in this country, you would find the great majority of the country behind you, including both Ds and Rs. But its got to be across the board, and not selectively applied only when its the left’s ox that is being gored.
Kudos to you for this forum, and not censoring or hiding from the criticism.
Colleges shouldn’t censor employees, but colleges should remain impartial until the allegations have been proven.
Oberlin’s defense relied heavily on the presumption that the Dean, Raimondo, was there to make sure the students were safe. Thus she was at the protests in an official capacity and her actions were therefore a direct reflection of the college.
Please tell me why this standard doesn’t apply.
“Respondeat Superior
The general legal theory that is used in cases involving employer liability for employees is “respondeat superior.” This legal theory means “let the master answer.” It holds employers liable for the actions of its employees. However, this rule only applies to actions that are within the course and scope of employment. Generally, if an employee caused harm while performing work duties or acting on the employer’s behalf, the employer will be found liable for its employee’s acts. This rule may apply in cases in which the employee injured someone in an automotive accident, even if the employee had taken a small personal detour at the time of impact. A detour is considered a small deviation from the employer’s instructions but that is still related to the original instructions. In this scenario, an employer is still held liable. However, if the employee was on a frolic, a more significant deviation from the employer’s instructions for the employee’s own personal gain or benefit, the employer is generally not held liable.”
https://www.hg.org/legal-articles/when-can-an-employer-be-found-liable-for-an-act-of-an-employee-34389
Incorrect. The dean and some of the professors turned up at the bakery with bull horns egging the students on, whose brains were not even fully formed yet.
This article makes no mention of Dean Raimondo’s presence at protests with a bullhorn or that she passed out flyers. All accounts I’ve read suggest that there was testimony during the trial about her taking part in protests. Student organized protests are not the college’s responsibility but their administrators participating is another issue.
Dean Raimondo’s presence at the protests and public statements were how the plaintiffs attached the actions of the university to the defamatory claims. She is an agent of the university.
An accusation of racism is not just an ‘opinion’ when it is made specifically in relation to apprehending a young man who was stopped for shoplifting when that young man actually was shoplifting. It is a lie. I appreciate the author (and others) are happy to maintain a situation where innocent people’s livelihoods can be destroyed as a result of mob justice, but the law – quite correctly – isn’t.
Very good point. Also, while it may not be legally defamatory to call someone a racist in the abstract, it certainly may be defamatory when a claim is made that an individual took a specific illegal or morally reprehensible action based solely on a wrongful racial animus. On appeal the bakery will get the benefit of every reasonable inference than can be drawn from the evidence. It appears to me that the jury could have reasonably concluded that the protesters and their friends in the administration were claiming that the bakery involved the police in this specific incident ONLY because the students in question were black and not because the bakery had been robbed. The College’s own involvement is sufficiently established by the fact that a vey high ranking college employee was distributing fliers claiming that the bakery had engaged in racist acts and by a wealth of other circumstantial evidence.
Calling someone “racist” is not an opinion, which is why what Oberlin did was clearly defamation. Racism is not some intangible concept. It has a clear definition: discrimination on basis of race. Why did Gibson’s apprehend the student? Because he shoplifted and committed a crime. A police review showed that the % of shoplifters arrested over the past few decades that were black, matched the campus population. Thus evidence showed Gibson’s was not racist, and Oberlin and it’s administrators knew this, but continued to call the bakery racist. That without a doubt is defamation. Making false statements knowingly and in order to cause harm and distress.
Yes. It really is this simple. Unless you want to get political. Then you get as complicated as necessary to make a point based on ideology. And that is exactly what is going on here. I have been politically left leaning (pretty strongly) my whole life and I am just sick with the insane influence of the Social Justice Warrior’s takeover of the Left.
Kurt Kish I couldn’t have said it better! The admin of Oberlin had the chance to put this to bed and avoid a legal battle, and they chose to allow the defamation to continue. A year prior, it was Oberlin admin that were being called racist by the students. In my opinion, the admin took this opportunity to clear their names, their reputations, and dog pile onto this bakery to save face. That is the actions of the vein and superficial. The private messages were clearly malicious in nature as well. To state this defamation case is “dangerous” is to allow those already inculcated with a lack of moral responsibility to believe their actions are justified, when they are not! Those that have this mentality are of a small margin of the populace, yet it’s portrayed as though their of the majority. This needs to stop, or at least be addressed in order to help these people from living a life of constant fear and outrage. I couldn’t imagine thinking like this would be relaxing in any regard.
Yes, there’s freedom of speech – but you can’t label someone with libel accusations – slandering, assaulting, intimidating… That’s wrong, and that’s FELONY. And the Oberlin’s faculty promoted this. And even more!!! Meredith Raimondo promoted defamation against the bakery. At the end, the Progressive Leftists have reaped what they sow… I hope this serve a lesson for you to think two times before label people with racists accusations, if you don’t have any prove.
Oberlin College students were engaged by the Oberlin’s faculty to commit violent attacks – assault -, slander, smearing the baker’s owner as a racist. That’s illegal – that’s not freedom of speech. You must be fools, or maybe evil people to support the college – who committed serious criminal acts against this person.
This claim is absolutely ridiculous. There were no violent attacks beyond the original shoplifting. I’m fairly certain that Oberlin faculty did not “engage” students to steal wine and then fight with the owner. The college committed no criminal acts, serious or not, and no one alleged that they did.
Despite the numerous posts above that document Oberlin’s responsibility (through a dean), John K. Wilson insists on doubling down on his original claim — which made no mention of the culpability of Meredith Raimondo. Like the students who supported the confessed shoplifters and cried racism without any evidence, Wilson’s neglect of Raimondo’s role in this affair is an example of “guilty even if proven innocent.” That’s exactly what happened to me at the hands of 3 CCNY students and a feckless administration that would not stand up for its faculty. (I noticed that Wilson did not reply to my link, which documented what happened to me.)
Admittedly, none of the reports I’ve read have mentioned any violence and no one claimed that the university urged the offenders to shoplift.
So you are wrong on the law, at least how it was taught to me at law school (UVA). You might want to read up on Agency law, and Defamation law. Both of those are a question of fact, and the jury decided. You don’t get to assume entire legal areas out of existence all by your self… at least not and come across as having a clue.
You don’t understand the point Legal Insurrection, or the other lawyers, are making. The issue turns on whether the college was responsible. The college is clearly NOT responsible for the actions of the students themselves, they are responsible only if it can be proved to a jury that the student’s actions were the result of the college’s actions. Hence the focus by legal insurrection on the college’s actions after the fact – it’s not about defamation there, it’s about agency.
This article would be handed back in a Torts class covered in red ink.
There’s one thing I’m having a hard time comprehending when I read this article: Can it not be a fact that someone is racist? The article states that had the owner performed racist acts, such as yelling racial slurs or prohibiting customers of color, those would have been facts; however, wouldn’t such actions mean the owner is, in fact, racist? …or would that still be an opinion?
If I called someone a murderer, would that be an opinion? …while stating someone has performed a murder would be a fact? I feel like saying someone was a murderer is a fact that implies they have a history where they have performed a murderous acts. On the same hand, saying someone is a racist is a fact that implies they have a history where they have performed racist acts.
You make some good points that I think confirm what I said. Racism is an opinion, often drawn from facts. Some people might defend someone who yells racial slurs and say they’re not really a racist. It’s an opinion, based on the underlying facts. Likewise, suppose someone says that anyone who has an abortion is a murderer. “Murderer” here is an opinion drawn from the underlying fact (having an abortion). The fact that most people disagree with that opinion or imagine that it implies other underlying facts doesn’t change the fact that it should be protected opinion.
Freedom of speech my ass. This was clearly defamatory from the start. The college got what it deserved.
The author of this piece is a paedophile but that is not slander as it is an opinion.
I’m sure the author will support your right to say that.
Even if you and 99 of your friends stand outside of his workplace, shouting the baseless accusation while deliberately trying to destroy his livelihood and reputation. Apparently.
Sorry, I think you’re just flat out wrong. This case was not about Oberlin’s ability to protect the First Amendment rights of its students. It was about its Dean and the rest of the administration participating in the defamation of the business and owners. Had they simply stood by and done nothing, there would probably have been no case.
Instead, the Dean actively participated in the defamation, handing out the defamatory leaflets and directing, at least in part, the protest. And then they doubled down, by interfering with the contract that Gibsons had with the third party food supplier.
There was more than adequate evidence to support these verdicts, including emails from the defendants themselves, and the laughable testimony of Dean Raimondo when she offered a Bill Cintoneqse defense–that whether she supported the students depended on what the definition of the word support is.
I don’t know what fits your definition of defamation, but handing out flyers that say that the bakery is a racist establishment with a long history of racial profiling, when that isn’t true, meets the definition of defamation in any legal textbook. The police actually had statistics that over a 5 year period, 40 people were arrested for shoplifting at the bakery, and 6 were black. I believe the other 34 were white. The college offered nothing to contradict that.
Let me answer the “support” issue that I didn’t have time to discuss in this article. (I should also add that it’s crazy to think that expressing support for someone who commits defamation is the same as committing defamation.) Oberlin said they would provide support for the students. In reality, “student support services” is an entire wing of administration that Raimondo runs. So “support” doesn’t mean “endorse the views of students,” but Gibson’s lawyer explicitly made that argument to the jury. The danger is that colleges “support” their students with resources all the time, and if colleges can be sued for millions for providing “support” for student events and student newspapers, then colleges will need to cut off all that “support” or censor students. So the two meanings of “support” are a very real thing this verdict confused, and not a Bill Clinton kind of evasion.
“So “support” doesn’t mean “endorse the views of students,” but Gibson’s lawyer explicitly made that argument to the jury”. And he was quite right to do so. You are trying to muddy the waters by introducing the irrelevant issue of formal ‘support’ for students which exists in every university. The court did not award damages for that kind of support, but for actively participating in the defamation and endorsing the views of students.
They gave the protestors free food and gloves, handed out fliers containing libelous claims and made sure the protesters received credit for protesting instead of going to class.
This is legitimate grounds for a libel lawsuit.
What is crazy about it is you pretending this is some kind of shock to you.
> “First, It is not defamation to call someone racist because it is a statement of opinion.”
It is not just “a statement of opinion” it is a factual claim about the character of the individual (in this case, bakery) you level it against. Statements of this kind have real consequences.
The consequences of this claim i.e.
1. The decimation of their business
2. The subsequent layoff of over a dozen local employees
Almost certainly qualify the accusation under any reasonable interpretation of defamation law.
I think Oberlin made two more serious mistakes in the trial. First is to stop doing business with the bakery when it filed the lawsuit. This act clearly shows that Oberlin had no remorse whatsoever for what they or their students have done. The bakery suffered injustice. Oberlin should have continued doing business as usual to demonstrate its respect and goodwill for the bakery. After all it was only about $500 a week, a miniscule amount in Oberlin’s operating budget. And it would have been a beneficial evidence to Oberlin during trial.
Secondly Oberlin hired expert witness that in court testimony valued this bakery for only $35,000. This is a bakery store that has been around more than 100 years and had six or seven full time employees. The valuation defies any common sense. It is not only demeaning to the bakery but also an insult to jury’s intelligence.
Legal arguments/minutiae not withstanding, this dishonest, childish hyper Political Correctness is certainly a culture that has been fostered and nurtured at many (most?) university and college campuses in the USA. Again and again we see virtue signaling students with virtual SJW superhero capes on their backs mindlessly slandering willy nilly anyone they want to for the most ridiculous reasons.
It’s pure pedantic bullshit that calling someone racist is opinion.
It may technically be opinion, but the intent here was purely malicious and the “opinion” expressed was purely stated as knee-jerk virtue signaling and wasn’t based on actual evidence.
Can I just say the writer of this article is a Nazi sympathizer and say hard evidence doesn’t matter because it just my “opinion”?
I am one disgruntled liberal!
Malice in its legal meaning is not just disliking someone but intentionally making a false charge. That seems highly unlikely here. It seems that the student protesters genuinely felt that the bakery was racist. But that doesn’t mean they were right. And yes, you can call me a Nazi sympathizer and shouldn’t be sued for it. People should be free to hold incorrect opinions without fearing legal penalties.
I am not so keen on validating or invalidating the lawsuit as I am ignorant on the matter. I know virtually nothing about law. What I am mad about is the culture that the Left has adopted. I feel (as Tim Pool puts it) politically homeless. I don’t think I could ever vote for a conservative, but the current flavor of Left wing thought seems poisoned.
The students AND some of the faculty at Oberlin appear to me to be indicative of this.
Quite frankly, I’m happy that Oberlin took this hit. It should serve as a ringing bell to other Universities that have caved to the minority voices of their hair-trigger SJW alum.
Also, these situations provide major incentive to middle Americans to vote in Trump again, and take away major votes for Democrats. 5th Gen. Mum & Pap store threatened and harassed by an obvious left leaning elitist college. Easy buckets for the right, this is free campaign promo material.
I see both sides of this story, but I believe the college did overstep in a few areas.
First off, it is one thing to make statements of “you’re a racist.” It is true that just saying or writing that might not be defamation in a historical context. Forming a mob and trying to drive people away from visiting a legal, legit business is a hostile act in my opinion. It might not and shouldn’t be criminal, but there should definitely be legal ramifications if such an act goes too far. Who gets to decide what is “too far?” The citizens and judges. The Constitution is only what judges rule what it is. Rights and what people can do can and will change as time goes on. The people either elect judges directly, or through elected officials who appoint them.
As far as the college being guilty, I believe they have some guilt in this. The question is, how far can a college go in supporting a student group (or non-group at that)? The student Senate should be allowed to do whatever they want, but at some point in time, the college or university will have to step in if the students are wrong. For example, if a college sanctioned, approved, and funded student group used their university server based website to call someone a pedophile, with absolute no proof of this, should a college allow it? How is this any different from calling someone or some business a racist? The employees shouldn’t have even went to the protests. These aren’t children, these are adults. From the reports I read, it sounded like the college was an active participant in the false accusation based protest.
I do wonder what this means going forward, but maybe it is high time that universities and colleges focus on one thing and one thing only, education. They hire people to teach, they support the classroom and learning environment, and that’s all. Things change and maybe the old ways of higher ed need to change in some fashion. Stop coddling these young adults and let them fend for themselves. If they want to go protests and that ends up in a fight with counter-protesters are students getting arrested, so be it.
I also think this is another example of where lawsuit limits need to be applied. Just like the ridiculous Monsanto award, we are getting too crazy with seven, eight, nine, and ten figure punitive judgements.
The author’s entire farrago hinges on his assertion that to call someone “racist” is not defamation because it is an opinion. Fail. “Racist” means that the target discriminates against a particular group based on specific characteristics, such as (here) race. That is an accusation of a fact. To say the target has done so over a long period of time is not only an additional defamatory assertion of fact, but it is uttered specifically to bolster and magnify the underlying statement of fact (“racist”).
The author is then reduced to arguing that the libel and slander were someone else’s libel and slander. Second fail. The evidence showed that Oberlin personnel actively participated in the defamation, and that they also aided and abetted the defamation of others. The author may not like those facts, but that is what the jury found Oberlin did. If that threatens Oberlin and every other college, perhaps they should examine their conduct rather than presume themselves immune to liability by virtue of calling themselves “academics” and collecting tuition. “Respondiat superior” ain’t just for General Motors.
Third fail: to assert that Oberlin was held liable for not muzzling its students at an off-campus protest. No, Oberlin had attempted to defend the participation of its personnel (notably Dean Raimondo) by claiming they were there to calm things down and help protect Gibson’s. The evidence cited was part of the retort to that ridiculous claim: not only did Oberlin NOT calm anyone or anything, they actively assisted the mob assertions of racism (it’s hard to call it a “protest” when the underlying assertion (“racist!”) was false and the trigger was a series of crimes that the perpetrators pled guilty to).
I could go on (for example, Oberlin broke long-standing contracts with the bakery over claims they knew to be false), but there is none so blind as he who refuses to see. And the argument that the University has no business muzzling speech, but instead should defend it (even speech it disagrees with or knows to be false) would have a lot more credibility if the Author, or Oberlin, had taken any action or voiced any support for tolerating and protecting conservative speakers. The chickens do occasionally come home to roost.
John, I appreciate your forum, but everything you wrote is just an attempt to distract and obfuscate simple facts. And, while technically a libel case, it is clearly rooted in race, and we are still not even at the top of the crest of the tidal wave of reverse discrimination lawsuits coming just over the horizon. There are absolute GOLD MINES of money waiting for the plaintiff’s bar, and as you know, that side of the bar always follows the money. As we saw a taste of here, the class action judgments from huge classes of white men, and women too, who weren’t hired or promoted will eventually come to dwarf the tobacco judgments of the 90s. Remember, the entities routinely engaging in such discrimination are colleges and big Fortune 500 companies, for whom the punitives will be enormous, not to mention the actual damages. Plus, the Plaintiff’s bar will be able to endear themselves to the other side of the population, that hitherto saw them as nothing more than parasites.
The administration, the courts, the public tiredness of PC nonsense – the stars are all aligned. It’s coming, John, and very soon. Man, I wish I could invest in law firms!
Personally, I can’t wait for the stampede of judgments In 5-10 years when today’s 14 year old transgirls and transboys start desisting in their 20s and they and their parents turn their ire on the doctors and “experts” that encouraged them to pump themselves full of hormones and get cut.
If these reverse-racism cases are on the way en masse, why won’t an attorney take on my case — on a contingency basis? Is it because so little money is at stake?
https://www.academia.edu/23593134/A_Leftist_Critique_of_Political_Correctness_Gone_Amok_–_Revised_and_Updated
I read your case letter. I’m unclear in the details. Regarding your protected class assertion, this argument is irrelevant. You can only assert this IF you were fired for being Italian American or because of your age. You were not. You were fired for your statements and actions (however unjustly). Also, I am unclear if you were fired, resigned, or if your contract was not renewed. No attorney will touch this because this seems like a weak case. You are not helping your case by going on public blogs with your full name railing against SJW’s and the like. You probably are rubbing attorneys the wrong way. They don’t want to spend time and energy on a losing case that you have the potential to sabotage yourself (if you have not already sabotaged it).
D: Thanks for reading my statement and for your bad legal advice. Many attorneys, including law school deans and professors, tell me that I have a GOOD case, no matter if I exercise my free Speech rights on social media or not. I feel that if I can’t speak freely at CCNY, then I’ll do so on-line. (Thus far, my statements have apparently damaged the reputation of the Media & Communications Department within the academic community and in several scholarly organizations.)
Lawyers tell me that I was treated badly and even illegally but then ask for $500/hr. to defend me. I’m looking for the Free Speech attorney willing to take on my case on a contingency basis. (How about it, Alan Dershowitz?) And don’t ask me to contact FIRE; I did and they said they were “too busy.”
Incidentally, one of the consequences of the phony “P.C.” police and IN-authentic SJWs (unlike me, who achieved much for minority communities over 5 decades) is that many students (including minorities) get a “safe” but dumbed-down curriculum without any controversy and critical thinking. Those repercussions — caused by faculty self-censorship were discussed in a WALL STREET JOURNAL article that featured my CCNY case (Politics makes strange bedfellows).:
https://www.academia.edu/31680392/Self-Censorship_of_College_Faculty
They are blowing smoke up your butt. If you had a good case, then a lawyer would not be requiring a $500 fee to take your case. Think about it. If a lawyer really thought they could profit off of you, why would they require such a high fee to represent you?
D: We’re way off-topic here but I’ve had several possible lawsuits in my lifetime and most were considered too minor for attorneys to take on a contingency basis. They don’t want to waste their time on something that might net them 30% of a $30,000 judgment. In most cases, I relied on friends or friends of friends who helped me out as a personal favor — plus the 30%.
Of course, if you know of someone willing to take on my case, please let me know. No one in NYC has been willing, and all have said my case has merit but they still insist on a substantive retainer and $500 per hour.
Fact vs Opinion:
There seems to be a lot of confusion here about “racism” as a fact or as opinion. First of all, there are several forms of racism: racism as a set of prejudicial beliefs about an identifiable racial group, racism as a form of discriminatory action against an identifiable racial group, and (institutional) racism as a pattern of actions that disproportionately impact an identifiable racial group. And typically racism is a highly relevant concern when it targets groups that have suffered from historical oppression or exclusion.
So, as far as I can see, the prejudicial form of racism is a fact if the perpetrator has explicitly expressed such a belief; otherwise it’s an opinion about the explanation of that perpetrator’s actions. Discriminatory racism (e.g., “whites only”) is a demonstrably documentable fact. Institutional racism can be demonstrably documented through statistically significant data about the distributive impact of actions. In that case, it’s a fact. In the current case, many commentators have noted that the statistics demonstrating that kind of impact are too thin and incomplete to become a “fact” of institutional racism, so from that perspective the racism claim is an opinion. This, and the lack of explicit prejudicial expression by the Gibsons, would seem to buttress John Wilson’s argument about racism as an opinion.
In law, we sometimes argue over whether we should use the common definition of a word or the legal definition of a word. Typically, we must use the common meaning unless we can prove there is a reason to use another definition. I have not read anything to suggest that either Oblerlin or Gibson’s asked the Judge to define racist, racial profiling or racial discrimination. If so, both parties waived the right to argue that a different definition should apply.
The common definition of the words give rise to questions of fact. You can prove that there were things done, actions taken or incidents transpiring that either were or were not the result of racial animosity. You can present evidence to prove or disprove that the precipitating event — the arrest of the three students for shoplifting and assault — was the result of racial profiling or racial discrimination. You may take umbrage with how the jury weighed the evidence that was presented to it but that doesn’t mean the decision isn’t supported by facts in the record. There was testimony about why the students were arrested, what the students pleaded guilty to and Gibson’s history of reporting shoplifters. I think that makes it hard to set aside the verdict.
Thanks for letting me comment here. The main problem I see is that the author of this piece seems to think that he can invent case law on the fly, to achieve a result that harmonizes with his sense of aesthetics. So now the Word is that falsely being called a racist is not really libelous? After the massive investment that academia and broader society have made in defining, researching, exposing, shaming, safe-spacing, anathematizing, and doing all in their power to instill revulsion at even the slightest waft of racism, falsely being called a racist is on par with having a bad hair day?
This whole attempt to obfuscate the facts reminds me of Politics and the English Language. Enough already. Its about time academics remember that libel is not an exercise of free speech.
Per Bob Koyak’s comment above: “After the massive investment that academia and broader society have made in defining, researching, exposing, shaming, safe-spacing, anathematizing, and doing all in their power to instill revulsion at even the slightest waft of racism, falsely being called a racist is on par with having a bad hair day?”
As the author clearly pointed out, opinions can be incredibly damaging, but are not actionable defamation. This is not “making up” case law, it’s core First Amendment jurisprudence.
“There is no connection between the level of harm in a statement and whether it is an opinion. Some opinions can cause serious harm, and some facts cause no harm. The test of whether something is an opinion depends on whether it’s an opinion, not the level of harm.”
Douglas, I suppose we’ll find out the extent to which being called a racist unjustifiably falls into the category of non-actionable opinion when Oberlin appeals as I assume they will, or as similar cases come forward. But I would add that being called a racist today has a lot more gravity than it did twenty or even ten years ago. It implies that the party so-labeled is unsavory, outside of the norms of civilized society, and certainly no one that a person should engage with in business. And, not wanting to get too squishy on the subject of feelings, it is a distressing label to be received by a party that has endeavored to uphold those norms. I am reminded of the famous defamation suit that the writer Lilian Hellman filed against Mary McCarthy for saying, on the Dick Cavett show, that every word that Hellman wrote was a lie including “and” and “the.” The court did not dismiss Hellman’s suit out of hand: it dragged on for years, ending only with the plaintiff’s death. It seems to me that being called a racist in today’s world is more injurious than being called a liar with obviously rhetorical flourish.
Re.: “being called a racist today has a lot more gravity than it did twenty or even ten years ago. It implies that the party so-labeled is unsavory, outside of the norms of civilized society, and certainly no one that a person should engage with in business.”
I used the word “hood” (i.e., urban neighborhood) in a CCNY classroom and was forced to resign by the department chair I was quoting when I used that “MICRO-aggression” — despite several decades of work on behalf of minority causes. (I’m proud to be listed on Rosa Parks’s Wall of Tolerance!) I was branded a racist, or at least “insensitive” by three pseudo-SJWs (out of a class of 30) and lost $5000 in salary and part of my impeccable reputation developed over 40+ years in higher ed.
BTW, I always thought that “MICRO” meant very small. Should someone lose his/her livelihood and reputation over something small?
If you check out the Restatement of Torts on Defamation, you will see that the statements made here clearly fall within the examples given, no matter how Oberlin and the author want to spin this.
THIS VIDEO EXPLAINS EVERYTHING:
The lesson to every company, entity, organization:
GET WOKE… GO BEOKE.
https://youtu.be/NPSpX3j1LrU
The statement about their long history of racial profiling isn’t an opinion, it’s an empirical claim…. also the college didn’t just merely make statements, they promoted a boycott. I mean cmon…
It seems the inmates run the asylum at Oberlin — administrators weak and unwilling to go against angry PC student leaders. Not an uncommon situation at many liberal institutions.
I think the trial may have been held in Elyria Ohio, the county seat. Oberlin is a bit of a liberal island in a sea of much more conservative communities — sort of like Princeton and New Jersey. I imagine the jurors were all to ready to send a message to those spoiled college kids — and they did!
My background is not in law, but it seems to me that even if the label of “racist” is opinion, the accusations of “racial profiling” and “discrimination” are not. The protesters calimed Gibson’s practiced racial profiling and discrimination. Of course it isn’t clear what exactly the protesters meant by these claims. But isn’t it a crime for a business to discriminate against customers or employees based on race?
President Ambar has released a statement, saying this court ruling would not deter Oberlin and basically won’t change what they do. She didn’t find anything to have been contrary to Oberlin’s values or mission, no statement about that they won’t do certain things again.
Just that they won’t simply pay up.
This is a little bit frightening. Oberlin doesn’t think it has to exist within the local legal system.
They’re not saying they dont have to exist within the legal system. They are saying their pockets are deep enough to deal with the consequences of their actions if they are found to have violated the law. That has how the Chicago Police Department has functioned for decades. Break the law then pay off the victims with no change.
More to the point, the outcome of the legal case may not be as important to Oberlin as the reaction among potential future college applicants and the alumni. Many alums, for example, including myself, saw the college’s handling of this mess as incompetent and arrogant, and are disinclined to support the college financially if the college treats this incident cavalierly. The college made no effort to settle out of court (which Gibson’s apparently would have accepted), despite the long-run financial jeopardy a negative jury outcome would impose upon the school.
If you assume the appeal is denied, then it should set a precedent that will hopefully make other colleges think twice before acting in the future. I just can’t see how it is fair to willfully target a business for destruction, for trying to prevent theft, and expect no consequences. In Texas you can get shot and killed for theft and the shooter not even get indicted.
The forty million dollar judgement will hurt, hurt bad, but not fatal to a college with a 800-million dollar endowment.
On the other hand, if they truly did not learn anything from the incident, if they truly will not do anything different in the future, then the college deserves to die.
Which would be a shame, actually I like the place. Ohio has a lot of little towns with good solid liberal arts colleges. You don’t have to agree with everything they do, I like them.
In fact, colleges all over the country, including Oberlin, will most definitely curb certain extremes of behavior. That’s a good thing, and I am quite happy to see this judgement.
The student who did the shoplifting. He admitted shoplifting, plead guilty, stated that racism was not a factor.
Did he ever stand up for the record and say something along the lines of “leave Gibson’s alone, they’re not racist, they didn’t profile, it’s not their fault, it’s my fault”.
It’s a shame if he didn’t, I mean I don’t know all the details, but it would have been tremendously to his credit if he had.
The Defamation suit can be most likely attributed to poor word use. The difference between opinion and a statement is no more than saying “I believe the bakery is racist” or “the bakery is racist” this is where the school made its mistake.
“Racist” is a statement of opinion. “Discrimination” and “Racial Profiling” are allegations of specific conduct, or else no one could ever sue for discrimination.
You conveniently left out the allegations of assault, which I believe is still criminal behavior, is it not?
I’m not completely sure if the jury ruled that it was defamation for the protesters to claim that the young Gibson assaulted the shoplifter. It shouldn’t be libel because it’s true. Grabbing someone and putting them in a headlock is assault. It’s perfectly legal under Ohio law to do this to a shoplifter, but it’s still true to call it assault. (Just like killing someone in self-defense is justifiable homicide, but it’s still called a homicide.)
To my knowledge no evidence was found of the headlock allegation other than the testimony of the three people who two officers witnessed standing over Gibson punching and kicking him.
If it was legal, it wasn’t assault. The racism allegations can be defended as an opinion; allegations of specific conduct, particularly criminal conduct, cannot.
Blah blah blah. It’s about time TORTIOUS INTERFERENCE slapped you Leftists across the face. Enjoy.
To my knowledge no evidence was found of the headlock allegation other than the testimony of the three people who two officers witnessed standing over Gibson punching and kicking him.
If it was legal, it wasn’t assault. The racism allegations can be defended as an opinion; allegations of specific conduct, particularly criminal conduct, cannot.
Selma Kelly: Please don’t blame ALL leftists for the sins of a few Stalinist “P.C.” types who act as the thought police. Even rational Marxists like me have been savaged by these pseudo-“SJWs” and their snowflake comrades due to supposed “MICRO-aggressions” based on allegedly “insensitive” remarks about identity politics (which was not a major concern of Karl Marx, who emphasized economic issues). Leftists are hardly a monolithic group — except on most college campuses. 🙂
Safe spaces for faculty and freethinkers!
Where did this author get his law degree from?
Better get his money back!
There is an inordinate level of animosity and confrontation between liberals and conservatives(and your US conservatives do not fit the conventional idea of Burkean conservatives) not just in Washington. In this instance the College especially some of staff reacted in a deplorable fashion without checking facts. The damages are unconscionable and the jury and the judge should be ashamed. The College failed to apply its mind to the issue which could have been resolved across a table. It is time that people gave up confrontation and opted for thoughtful conciliation. After all the gown and town need each other.
There seems to be no reason to drag Trump or Obama here though.
The judge and the jury have nothing to be ashamed of.
The jury saw a 800-million dollar endowment college bulldozing a family business, over lies.
I am glad to see the judgement. It will cause significant damage, though not fatal to the College.
Academic institutions will think twice about letting student mobs loose aiding and abetting these mobs, in the future.
That’s a good thing.
I went to college. We definitely misbehaved. Some of our actions had the possible effect to hurt townies, I mean damage property or livelihood. Trivial damage compared to what happened to Gibson’s, but still damage.
We did have administration read us the riot act. To think about the effect our actions would have on people who worked for a living. People who didn’t have the opportunities we had, as college students.
For the most part, we listened.
Did that sort of thing ever happen in this Oberlin incident?
I’m confused. You point out the students acted “disgracefully”. You say the faculty acted in a manner you correctly identify as “incredibly stupid” and “repulsive”.
Gibson’s was hurt by these actions. Badly hurt.
Gibson’s was hurt by people who should know better.
Like a patient hurt by a bad surgeon. And I say worse than a bad surgeon. A surgeon makes a mistake, the patient lives with it forever. But the surgeon rarely has the chance to undo the error. Oberlin had a chance to undo the damage, every day.
They deliberately chose not to make things right.
The jury acted like they saw an arrogant surgeon who hurt a patient, knew it was wrong, didn’t care, and vowed to do it again.
Here’s the difference. The “corporate veil” has not existed for doctors, for about half a century or more. The doctor is held PERSONALLY responsible for actions.
I bet that jury would have awarded maybe a tenth of what they did, if they thought the bad actors would be rendered personally responsible for their actions. The jury did what they did, for a reason.
Oberlin DESERVED that shocking verdict.
Why can’t you understand that? You say how badly Oberlin behaved, then you express surprise that a jury returned the verdict they did?
There is a very important different between a surgeon and Oberlin. A surgeon makes a contract with a patient, agreeing to provide adequate treatment in exchange for money. But Oberlin and its students never signed a contract with any bakery agreeing that they would never say anything bad about them. I’m not surprised that the jury wanted to punish Oberlin; I merely observed that doing so in violation of Constitutional rights to free speech is not allowed under the law.
You use the words “stupid” or “incredibly stupid” and “repulsive” to describe something the faculty did. So what, precisely, was “stupid” and “repulsive”?
Speech? Or ACTIONS?
You know full well the judgement was not over wha people SAID, it was over what people DID.
I don’t know of anything wrong that the faculty did, just the administration, and it was both speech and actions by Oberlin College that I objected to. However, the essence of defamation is speech, not action. That’s partly why this judgment was wrong: the defamation came from the student flier and the student senate resolution, but Oberlin was found guilty of defamation even though they never said anything defamatory.
The court proved you wrong, and (my prediction FWIW) so will the appeal. The award will be lowered, but the judgement will stand. Ohio limits punitive damages to 2X economic, so guaranteed the award will be lowered.
Whether you like the surgeon comparison or not, I don’t care. Any physician knows, you get sued, you act like a jerk, and you will lose even if you’re right. Oberlin acted worse than any surgeon ever has. The surgeon virtually never has a chance to make things right. The college had a chance to make things right every single day. They chose not to. Gibson was not their kind of people.
Looks like they will have to pay Gibson’s legal fees, and the insurance carrier has indicated they will not cover this INTENTIONAL act.
But enjoy your echo chamber. Geez, even Bill Maher disagrees with your position.
You’re… not a lawyer, huh? I mean, this is an embarrassingly ignorant take.
The college had its tour guides telling prospective new students to avoid Gibson’s because it is a racist institution. The tour guides acted as agents of the school. The school has a responsibility to stop it’s agents from libel. The way it was said, was s add I’d as fact, not as opinion. The tour guides didn’t say, we think this place may be racist. They said, this place is racist, font go there, go to these other bakeries. Tough to explain that away as just rowdy students engaging in protected speech while they were activEly working for the school.
Look at the smear job that came out of Salon.
https://www.salon.com/2019/06/14/everything-you-need-to-know-about-the-bizarre-lawsuit-between-oberlin-college-and-a-local-bakery/
When I read garbage like that, I wish there were some way lawsuit could have been extended to Salon.
I regard myself as a progressive liberal, and it continually disgusts me how others who claim to be the same thing are willing scrape and scratch together excuses for the most appalling behaviour as long as the perpetrators are deemed to be on ‘our’ side. Not one of the commenters at the end of the article you cite seems to comprehend, let alone acknowledge, that a wholly innocent family’s livelihood and reputation was destroyed by the disingenuous behaviour of this college and its students. Any decent person, of whatever political persuasion, should and would be disgusted by that. Yet all these commenters can do is portray themselves and their cause as the victims of persecution.
It’s shameful.
It’s what they learned in school. That’s a core reason for the lawsuit and huge verdict.
Ditto
Well said.
Look up the Salon piece on the Oberlin case, the smear job is absolutely appalling.
I wanted to comment, but not sure if I wanted to dignify them with a response.
Well said Keith Lodge. The shoplifting kid went to Phillips Andover. Child of privilege, going around claiming to be the victim. Probably thought he was Superfly when he stole the wine, but crying lake a baby when arrested. I’d have some respect for him if he’d had the decency to own up to what he did and call for the protests to stop.
See police bodycam of the incident.
https://www.youtube.com/watch?v=M7n8f8sLTDE
See about 17;55 Gibson says “couple of students stealing wine” (dropped bottles on the floor).About 18:05 Gibson again, “All the students saw it differently though, and they’re all making up these stories”
See the man at 21:00 “Why would WE have to lie, what would WE have to lie about?” One of Gibson’s employees.
Yeah, looks like a bunch of racists all right.
So, what time do you think these people got up in the morning, to bake the pastries the students get to eat? Stock the wine the Phillips Andover grad tried to steal?
Maybe about 3-AM?
Most likely that Gibson employee lost his job over this, as Gibson had to fire most of their employees, and the Gibson’s themselves worked without a salary.
So that rich Phillips Academy graduate economics major child of privilege, claiming to be a victim of racial profiling, did not just hurt whites with his actions.
I read the Salon article, and it seems like a fair and evenhanded example of good reporting. It isn’t anything approaching a smear job, and the fact that you think Salon should be sued for neutral reporting shows how many people truly don’t believe in freedom of the press.
Would you like to point out where the extensive quotations about inhibiting free speech at the end of the article (AKA the right to spread completely baseless accusations about people in an attempt to destroy their reputation and livelihood) are ‘evenhandedly’ contrasted with the consequences of such ‘free speech’ for the Gibsons? I must have missed the quotations which balance out that bias.
Teachers at school do not have absolute free speech. They are restricted in what they can say in the classroom about lots of things. Schools restrict teacher speech on religion. Just try setting up a nativity scene at a school and see what happens.
Students do nit gave free speech in class. They are not allowed to talk about lots of things. Students are even restricted in social media posts made outside class, especially on topics like guns and hunting. There are numerous examples of students being penalized for posting pics on instagram hunting with dad.
Now that we have established that freedom of speech on campus is not absolute for students and faculty, who is responsible for reining in the students and faculty for stepping out of the bounds of allowed speech? The school, via its agents, is responsible for enforcing limits on speech.
In this case, it seems as though the school chose a side, and violated libel laws by defaming the business. The judgement against the school seems allowable, right?
You call that salon piece neutral reporting?
Just to start, the student did not “allegedly” shoplift, he pled guilty. He “admittedly” shoplifted. The scuffle is paragraph two, and WHY there was a scuffle was paragraph seven. That’s journalism 101. Journalistic malpractice. I could go on, but clearly you are working in an alternative reality.
This is hardly journalistic malpractice. The Salon piece was describing what happened in 2016, when the shoplifting was just alleged (the plea came after the protests). I think too many journalists overuse the word “allegedly” because they’re taught to be afraid of defamation lawsuits.
First, John, I take your arguments in good faith as you seem sincere and that ought to count for something—but sadly, it doesn’t very much anymore. That shift in decorum is also at the heart of this incident, I think, and the PC-alt right conflict in general.
But regarding the Salon article, it seems you have blinders on.
I read the article and for 80% of it, I thought they were doing a great job with objectivity, characterizing both sides by quoting what they wrote in court documents.
But I got to the end, the most important part in many ways, and had a “wtf” moment.
It concludes with quotes from two college sympathasizers, who, at least in the article’s context, imply the community is untrustworthy and violent. Then it implies most legal minds believe it will chill speech.
They could have gotten quotes from Gibsons employees, including some who were black. They could have gotten quotes from community leaders on the other side, saying how the community finds the college and its students untrustworthy and violent. Perhaps a majority of legal minds worry about chilling speech, but surely there are significant minorities who believe it upheld the rights of business owners.
Do you honestly not see that? I am (at least, for many years before) liberal, and as outrageous as Fox News and Breitbart are, I have found that traditionally centrist newsrooms are making fools of themselves trying to fight the right.
Incidentally, I am not a lawyer. But I always thought the 1st Amendment merely protected one from the government, not the consequences of speech. So you have the right to protest without fear of the government locking you up, but could be accountable civilally. And because of the narrow scope of the events here, charges of racism are not merely opinion but entirely inaccurate.
Whatever the case, if this puts the brakes on other schools oppressive actions ostensibly in the name of social justice, I think the outcome is good for now.
Courts are part of the government. This is the government taking money from a college for speech that someone dislikes. The danger is that this ruling will encourage more oppressive actions by colleges. If colleges are legally responsible for what their students say, they will have a handy new excuse for banning controversial speakers who might defame someone, and censoring student newspapers and websites.
Once again, knowledge of the extant law means little to nothing to John Wilson because he seems to think that either (1) there are no statutes against libel, slander, tortious interference, etc. OR (2) there shouldn’t be any such laws. Until that day comes, when Freedom of Speech entails COMPLETE liberty to anything about anything or anybody without consequences, the laws of the nation prevail.
But imagine the bloodshed and other harm that would result if we had TOTAL license to express opinions and “facts.” My guess is the KKK and other bullying groups (on and off campus) would rule the nation.
BTW, here’s a definition of tortious interference: “A tort, in common law jurisdictions, is a civil wrong that causes a claimant to suffer loss or harm resulting in legal liability for the person who commits the tortious act.” This may not have been what Oberlin was charged with, but it seems to fit the circumstances.
The First Amendment limits defamation laws. I do think we should abolish defamation laws. I see no evidence that more repressive defamation laws leads to bullying groups running the world. I am not an expert on tortious interference. However, it does seem that any private person or college is perfectly free to buy whatever food you want to, and where there is no contract involved (as in this case), they can change their mind whenever they wish. Some people seem to think that if a college outsources its dining hall to a contractor, it is tortious interference if it says it doesn’t want a certain food provider to be used; I find that ridiculous, to claim that a college can’t have a say in what food it serves in a dining hall. A boycott is not tortious interference, it’s a fundamental First Amendment right. It might be tortious interference if Oberlin had ordered Bon Appetit to ban Gibson’s Bakery from being used by any of its other clients, but I’ve seen no evidence Oberlin did that. Fundamentally, people (and colleges) get to decide what food they buy. Their choices may be wrong, but the courts should not step in to punish them for making a choice for bad reasons.
Hi John, replying here to your comment earlier today (not sure this is going to thread right). You wrote ” If colleges are legally responsible for what their students say”. That was not what happened in this case. I’ve read your column and the responses, and I think you are missing some of the nuances of this case. Here is the relevant part regarding the libel/defamation:
Meredith Raimondo, in her official capacity as Dean of Students, attended the first protest and personally handed out fliers that said, in part, that Gibson’s had “a long account of racial profiling and discrimination”. The judge ruled in a summary judgment that that was a statement of fact subject to verifiability (meaning it could be proven to be true or false). Raimondo and/or other college staff also used college copiers to make more fliers and gave them to students for them to distribute. Raimondo and Oberlin never made any attempt to verify the truthfulness of that statement prior to publishing it.
So Oberlin was held liable for the actions of their staff (acting in their official capacity), not for what the students said or did.
Additionally–although I don’t know how much this factored into the libel claim–the college allowed that statement to be displayed on campus long after they knew or should have known it was false. This may only have been relevant to the intentional infliction of emotional distress.
Being held responsible for what students said is literally what happened here. Students wrote the flier, and Raimondo gave a copy to someone, and the college allowed campus copiers to be used. The Student Senate passed the resolution, and the College merely allowed it to be posted on campus (as they should). This kind of support is normal at a college (student groups being able to make copies, students being able to post fliers). There is nothing wrong with professors and staff helping students.
No, John, Oberlin was held responsible because Oberlin staff participated in the publication of defamatory material. It doesn’t matter that they didn’t write the flier; they distributed it. If Raimondo and Oberlin had stayed out it and not participated in handing out the fliers (and not interfered with Gibson’s food contract), they would not have been sued. It’s pretty much that simple.
And no, colleges should not support the posting of defamatory messages that they know to be false.
I side with the Bakery- full stop. But I read the Salon article and I don’t see a “smear job” at all. I se an article explaining both sides. Did you read the whole article?
Good Lord.
Describing the shoplifter.
Do you know the difference between “alleged” and “admitted”?
Obviously not.
There’s more to the story than told here, as Oberlin College licensed and subsidized the Black Student Union, Student Senate and College Democrats, the associations conducting the protests. Hardly unusual; campuses across the US fund similar clubs in the belief that they promote civic awareness and personal development. But the latter are in fact creatures of the institution whose administrators can disband them at will, a thing we’ve seen happen to fraternities that run afoul of campus or community preferences.
This, along with Oberlin’s agreement to suspend purchases from Gibson’s Bakery at the boycotters’ behest, drew it into the affair, and reasonably so, for Oberlin wields enough clout to shut down any local business it chooses to campaign against. Even if the defamation of character claim is found baseless on appeal, I don’t see how Oberlin could have severed itself from exposure to liability in connection, whether sued because of deep pockets or not.
Nor is imputation of racism a mere matter of opinion rather than of an ideology with definite principles and indicia of prejudicial speech or discriminatory behavior an impartial onlooker can assess. The proposition that the motives behind a subject’s conduct are racist is falsifiable and the EEOC makes related decisions almost every day.
This lawsuit raised issues somewhat parallel to those impinging on the net neutrality debate, for instance the question of whether Facebook, the oligopolist in social media, should be exempt from responsibility for what its users post, as a common carrier is, while free to “deplatform” political voices its management dislikes, a thing common carrier laws forbid the phone companies to do. A private university, though not strictly analogous to AT&T, is indeed a community resource its “users,” the students and the parents who send them there, might expect to remain neutral in controversies unless its ability to educate is at stake.
The black student union and all that. Oberlin pioneered coed and integrated education. Oberlin produced men who fought and died in the John Brown raid, and in the Civil War.
Their ghosts must be sick to see a shoplifter held up as a victim of “racism”.
You don’t seem to understand that the defense against defamation/libel/slander is to prove what you said was true. Oberlin couldn’t, therefore, this is a textbook case of defamation. The college endorsed something they should not have endorsed, ergo, they pay the price. They got involved in an issue with a private citizen, for whom the threshold to prove defamation is low, and they deserve whatever they get. I’ve been an AAUP member for 20+ years and am as liberal as they come. This is the most ignorant article I’ve read from you. If the issue had remained private citizen/business vs angry mob, Oberlin wouldn’t have had a problem.
There are many defenses against defamation, and truth is only one of them. Opinion is a defense. So, if a student group boycotts a Planned Parenthood clinic and says, “abortionists are murderers,” they are making a false allegation of a crime and harming a private business. I think they should be free to say this because it is an opinion, just as racism is an opinion. And if a college supports this student group by allowing them to put up posters that say “abortionists are murderers” and allowing professors to endorse the students, and similar actions, the college should not owe millions of dollars. That’s the threat to free speech and academic freedom in this case. Why is it ignorant for me to say that colleges should not be obliged to censor their students or owe millions of dollars for something the college never actually said?
Perhaps it is time to file suit against those who call specific doctors “murders” for performing abortions? It is one thing to claim ones opinion that “abortion is murder”; but perhaps it is different to say “Dr. X is a murderer”. Perhaps, in the social media age, we need to depersonalize these discussions and move them back to more general policy/legal discussions.
There have been very strong legal arguments made in the replies to your column that you have not addressed. Rather than repeat these very general tropes you have been using; you could engage with the actual legal issues contained in this case that you are using as an example.
“So, if a student group boycotts a Planned Parenthood clinic and says, “abortionists are murderers,” they are making a false allegation of a crime and harming a private business. I think they should be free to say this because it is an opinion, just as racism is an opinion.”
A completely false analogy for the simple reason that in saying ‘abortionists are murderers’ is a statement based on the honest belief/ opinion that killing a foetus is an act of murder. Whether the allegation ‘killing=murder” is true or false is a matter of opinion.
Saying ‘you are a racist’ because a shopkeeper apprehends a shoplifter who actually is a shoplifter, is not a mere ‘opinion’ – it is simply a false allegation. Apprehending an actual shoplifter does not equal racism. It is not evidence of racism at all. That, to any reasonable person, is not a matter of opinion, but a fact.
If you want to compare Gibson’s to abortion, maybe the more appropriate analogy would be standing outside the clinic shouting murder, ignoring the fact that it’s a dentist office.
“colleges should not be obliged to censor their students or owe millions of dollars for something the college never actually said”
Legal Insurrection@LegInsurrection
Jun 15
Wonder why the jury found actual malice? Internal emails are big part, including Raimondo’s “unleash the students” and “fuck him” (directed at retired prof defending Gibsons) https://legalinsurrection.com/2019/05/gibsons-bakery-v-oberlin-college-trial-day-3-to-unleash-the-students-or-not-that-was-the-question/ …
https://twitter.com/LegInsurrection/status/1139911443724361728
Student journalist: Shoplifting at Gibson’s Bakery was part of Oberlin College’s “Culture of Theft”
Posted by William A. Jacobson
Sunday, June 16, 2019 at 9:40pm
“[W]e uncovered a sad truth: That the majority of shoplifting in Oberlin is carried out by students…. [because] students just felt like it” — Puts in context testimony that the college wanted a special procedure for student shoplifters and feared backing the bakery would “trigger” a negative student reaction.
https://legalinsurrection.com/2019/06/student-journalist-shoplifting-at-gibsons-bakery-was-part-of-oberlin-colleges-culture-of-theft/
I want to thank the people with expertise in the law for taking their time time to comment on this essay. It is obvious that the author is not a lawyer and does not understand the legal issues involved. I have been trying to understand the actual legal issues, and have learned a great deal here.
I suspect and hope that OC comes to their senses and settles this issue. They are a fine old institution in their own right. I hope they survive; but I also think they have behaved execrably in this case.
There is much for a citizen to chew on in all this. The advent of social media and the effects on our society have raised grave issues concerning free speech and the obligations of those who use it to pursue agendas. I suspect there will be more of these types of suits as sensible boundaries must again be set out to remind everyone that free speech is not an absolute right to attack others.
This article has numerous errors and omissions.
The police testified that over several years, 40 people were arrested for shoplifting at Gibson’s. Only 6 of those were black. Oberlin suggested they had conducted studies to the contrary, but never submitted any data to that effect. Hearsay testimony from students talking about their feelings is not evidence.
The students who shoplifted admitted to their crime and also stated that racism was not a factor in their being pursued by Gibson employees.
The school gave students credit for attending the protests, and numerous emails were submitted into evidence showing that the administration actively encouraged the students in this regard, and encouraged the boycott of Gibson’s.
All of these activities smeared the Gibsons’ reputations and interfered with their ability to do business in the town. Inflammatory statements by Oberlin expert witnesses likely incensed the jury, as well.
Gibson counsel made several overtures to settle with Oberlin, all of which were rebuffed. Why didn’t they at least attempt to settle before heading to trial? Oberlin/s attempt to declare a mistrial was denied:
https://www.oberlin.edu/sites/default/files/content/office/general-counsel/current-issues/defendant_meredith_raimondos_motion_for_summary_judgment.pdf
Res ipsa loquitur evidence.
Well said, though I suspect it will be ignored in this forum. So much banging away over freedom of speech, when the issue is not what Oberlin SAID, it’s about what Oberlin DID. Tortious interference with contracts, business relationships.
I’m not sure what errors you’re talking about. On the race of arrested shoplifters, I don’t see how that would prove or disprove racism. It should be noted that the Oberlin Grape did an excellent analysis of this issue, and found that these figures omitted juveniles arrested at Gibson’s for shoplifting, who were mostly black: https://lukefortney.atavist.com/gibsons-bakery
That still doesn’t prove there was any racism.
As for the students who shoplifted, being forced to say something as a condition of a plea agreement does not prove racism wasn’t a factor (how would they know if it was?).
If Oberlin actively encouraged the boycott (and there’s not strong evidence of that), that’s still not defamation. I certainly agree that Oberlin and its lawyers mishandled this case in many, many ways and behaved badly and were stupid. That is still not defamation.
There is irrefutable evidence they encouraged the boycott. They gave free food, gloves, and class credit to the protesters, passed out flyers libeling the bakery, cancelled their contract with the bakery (and stating this publicly) and allowed student and faculty groups to publicize their libel on school grounds.
The students plead guilty because they knew they were guilty and the prosecutor had them dead to rights. Racism was clearly not a factor, anymore than race is a factor when a person is ticketed for running a red light.
You can keep claiming no defamation occurred, but you are wrong as a question of basic fact. Making and disseminating claims that irrefutably constitute a reckless disregard for the truth is clearly defamation. It was proven that not only did defamation occur, but it damaged the business being defamed.
Putting your hands over your ears and chanting “no defamation! no defamation!” does not change the facts.
I don’t mean to sound too harsh, but this article is like Fouceault suddenly woke up in the cold objective glare of a courtroom, and started hurling non sequiturs to buy time until he found a window to jump out of.
The court case concerns university officials accusing a business of racist action. The latter being ‘profiling’ and treating customers unfairly on the basis of race.
Note every word in that previous sentence. The court case concerns absolutely nothing else.
It’s not about what the students did. The school can’t control them. It’s also not about general or non-specific notions may have prevailed on campus or anyone else.
It is about a specific act where party A accused party B of racist *actions*. The accusation resulted in financial damages.
The first amendment does not protect libelous speech any more than it does bomb threats or harassment. These exceptions have been carved out in case law for generations now.
Any sober discussion of the topic might address the prevailing case law in Ohio, as the definition of libel is left in large part to the individual states.
Your article, I’m afraid, isn’t wrong. It’s completely incoherent regarding the events at Oberlin and their philosophical, cultural and legal contexts.
When I defended John McAdams, lots of leftists said the same thing, that I didn’t understand the real issues (although none of them compared me to Foucault). The First Amendment does protect libel a lot more than bomb threats. Courts overturn libel rulings regularly for punishing protected speech (as they should in this case), but overturning convictions for bomb threats is almost unheard of. States do decide their case law. But under the First Amendment, states cannot have more restrictions on free speech than the First Amendment allows (as defined by the US Supreme Court). Ohio has broader protections than most states on opinion, which is allowed. But Ohio also has a novel rule on “aids and abets” defamation that was key to this case and puts a heavier burden on free speech, which means that it should be overturned. And that’s why it matters that the defamatory speech here was written by students and Oberlin merely aided its distribution, because that should overturn the entire ruling against Oberlin.
I actually welcome your language and context here! You do seem much more informed than I thought at first.
I agree that *states* cannot restrict speech protected under A1, but this is a civil, not a criminal charge.
The State of Ohio isn’t the complainant in a criminal charge. It can devise almost any definition of civil libel that it desires. SCOTUS has only carved out an exception to this when it applies to public officials. In New York Times v. Sullivan, it was decided that public officials had to meet a very high standard in order to allege libel. This was done specifically to protect the press from politicians from doing an end-run around A1 and invoking state-level, civil libel law to bankrupt hostile press.
The Oberlin case is far beyond any shred of A1 protection.
I think you have a valid point that the campus officials were handing out, but did not author the text. However, I don’t think that point can hold up.
Aside from the common sense notion that a campus vice president should take reasonable care to read what they are distributing, if we decide that only the original author can be charged with libel, we completely break the legal protection against libel.
If we wish to commit libel against someone, we need only secure an anonymous author.
Certainly, it gets tricky where the blame stops. Not the news-paper delivery boy. Where exactly that line is drawn, I can’t tell you.
But I am pretty confident that a university vice president personally distributing fliers – and I mean literally personally handing them out – is on the losing side of that line.
As a matter of law, you are incorrect. The US Supreme Court has ruled that defamation laws must meet certain standards to prevent restrictions on First Amendment rights, and those standards are not limited to public figures. I strongly disagree with the notion that distribution is defamation. For example, if someone links to an article that’s later deemed defamatory, can they sued simply for failing to read something carefully? Likewise, bookstores should not be sued for selling defamatory books, or delivery boys for providing newspapers. Defamation should belong only to the author and sometimes the publisher.
The Oberlin administration do not “link” to an article or some such innocuous thing. They proactively took part in ACTIONS that resulted in a substantial loss of business to a bakery that they had good relations with for years. They knew or should have known the charges made by the student mob were false or at least unsubstantiated. There were internal emails released about “unleashing the students” on people who supported the bakery. Had they been more brave,they could probably have put an end to this without any lawsuits. They sacrificed integrity for expediency in an effort to “support’ students.
They may roll back the amount of the verdict (especially the $33,000,000 punitive damages) but they have lost this case on the merits
I know university administrators are not parents. But sometimes, just like parents, they must take an unpopular stance with the students in an effort to produce young people with a more mature sense of justice — young people with a but more humility and a bit less entitlement — a sense that takes all the facts of a situation into account before reaching conclusions that can be devastating to innocent people involved. At this, Oberlin deserves an F (or in these grade inflated times maybe a B-.
What an excellent, well-reasoned commentary! Bravo, George!
Although John K. Wilson FINALLY provided a little more legal argument and a few more facts, he still seems to think that people should not be subject to libel, defamation, and other laws that constrain free speech. Ergo, there’s no convincing him that the jury verdict was just, under existing statutes.
That’s why I dropped out of commenting on his posts.
“The US Supreme Court has ruled that defamation laws must meet certain standards to prevent restrictions on First Amendment rights, and those standards are not limited to public figures.”
Cite me a SCOTUS decision and I’ll yield the debate and thank you for improving my knowledge on the issue.
If you can’t, I’d respect your doing likewise.
To be clear, we’re talking about ‘libel’ – defamation in written form. I’m challenging you to cite a SCOTUS decision that goes beyond NYT vs Sullivan and sets minimal standards for libel against people who are not public/governmental officials.
In Gertz v. Welch (1974), the US Supreme Court ruled that a state defamation ruling for a private figure was unconstitutional. (Justice White, dissenting, complained that this ruling would overturn defamation law in all 50 states.) The Court specified that states could not impose a strict liability standard for defamation (which includes both libel and slander) of private figures. In addition, punitive damages (as in the Oberlin case) could not imposed without the finding of actual malice that exists for public figures, in my view actual malice was not close to being met in this case. (I also strongly disagree with the judge’s ruling that Gibson’s Bakery is a private figure–this is a business open to the public that is one of the most famous names in the city, and it certainly meets the standard of “general fame or notoriety in the community.” In general, a private figure is someone that no one on the jury would have ever heard about before a lawsuit was filed. Gibson’s Bakery would certainly fail to meet that standard.)
John writes: “The Court specified that states could not impose a strict liability standard for defamation (which includes both libel and slander) of private figures.”
True, but they can impose a negligence standard, which is easily met in this case, since there was no evidence at all that the Gibson’s had a history of racial profiling or discrimination. So any such conclusion was at the very least arrived at negligently.
@George, Oberlin doesn’t give out grades less than a C.
Actually, aiding or abetting is not a novel concept in Ohio. It is a universally accepted concept in torts in general and libel law specifically. See 53 Corpus Juris Secundum 231; Restat 2d of Torts, 876.
let me translate and comment so that working men can understand this.
College creep boosts some booze from bakery, but was nabbed by baker, and the suspect becomes the accused by confession.
College busybodies become enraged by the tale, sling s*** at bakery, telling bad lies about bakery with bull horns and fliers, spreading lies.
College bosses consent with silence, and college hirelings help spread lies with college property on the college nickle, not doing their job of teaching, but in spreading lies and acting like busy bodies.
College bosses join the busy bodies by severing business relationship with bakers.
Bakers hire court officers to expose busy bodies, for the sake of punishment and restitution.
In a jury trial, court room ritual results in big pay off for bakers, college rekt.
If a man has a problem with this, then he is a faithless creep who doesnt trust in our system of court officers and peer jurys, and all traditional court rituals. You faithless creeps need help.
Not much of a legal scholar, huh? All of the elements to prove the plaintiff’s case were presented. Great day for America.
This article is wrong in basically every legal conclusion. For example, accusing someone of “racial profiling and discrimination” is not expressing an opinion. It’s an allegation of illegal conduct. It would be like if a person expressed their “opinion” to your boss that you have a long history of rape.
“And Oberlin’s administrators sent each other very dumb messages that alienated the judge and jury so much that the actual legal regulations about defamation.” Not sure what you’ve written here.
A member of the Oberlin college administration was handing out fliers with declarative statements, not opinions. “This is a RACIST establishment with a LONG ACCOUNT of RACIAL PROFILING and DISCRIMINATION.” (emphasis by the flier’s author) There is nothing on the flier to say that the author has an opinion on the matter. It makes the declaration that there exists a “long account of racial profiling and discrimination”. I’ve been following this and have yet to see any facts to back up the assertion made on the flier. The flier, which was handed out by a member of the Oberlin administration.
If I’m handed a flier by a member of an organization’s administrative staff, a flier with declarative statements and assertions, it is MY OPINION that the administration of that organization is making a statement which they believe to be true. “This is a RACISTS establishment…” is a statement that needs to be backed up with facts, an apology, or a legal defense.
It is my opinion, that you are incorrect in your assessment of this case.
John Wilson’s argument is legally confused. Courts have long recognized that factual assertions can be disguised in opinion form. So the fact that the statement on the flyer can be characterized as an opinion doesn’t mean that’s how it’s going to be received by reasonable listeners, which is what matters legally.
Certainly, most allegations of racism out there are non-actionable opinion. If you accuse someone of having racist motivations for, say, opposing affirmative action, that’s non-actionable opinion, because motivation can’t be proven. If you say the Gibsons are racist because having a black shoplifter arrested perpetuates racist stereotypes, that’s also just opinion, an expression of political philosophy.
But a jury could reasonably find that the statement on the flyer “Long account of racial profiling and discrimination” is describing objectively verifiable (or falsifiable) behavior. That’s an empirical claim, not a statement of opinion.
That inept dean that you referred to is obviously not inept in the eyes of the administration of Oberlin College. Dean Raimondo is still employed there as of today. The college either stands by her or is afraid of a massive protest that will occur if she is fired or has her responsibilities reduced.
This is a very though-provoking perspective on the case, and one that stands out against the grain of the majority of the coverage. I am very much a lay person; I am an outside observer and not a lawyer. One question that I had for you is this: As I read over the court filings, I noticed several times that Oberlin seemed to blatantly mischaracterize the circumstances of the arrest, circumstances that by my understanding had already been determined in criminal court (which the school would have obviously been well aware of). For example, in the motion to dismiss, the school states: “In reality, it was an employee of Gibson’s Bakery and a relative of the individual plaintiffs, Allyn D. Gibson, who left the safety of his business to violently physically assault an unarmed student.” Given the students had pleaded guilty to assaulting the shop employee, this seems to be an obvious lie. More than that, it is an obvious lie obviously meant to injure the business by making the factual statement the employee was the assaulter. Apart from whether racism is an opinion (and your argument could very well be persuasive on that point—I would certainly defer to those with legal expertise), these and a few other factual lies in the college’s own court filings make it very hard for me to believe as a lay person that the college would have constrained itself to merely statements of opinion in their communications on this subject. One would expect them to be the MOST circumspect in legal filings, no? The only other piece of the puzzle would seem to be malice, and it doesn’t seem even from your argument in this article that you dispute that (to me the facts on that score are pretty clear given the results of the discovery). Would these factual statements in legal briefings affect your appraisal of the legal standing at all?
Legal filings are privileged–you cannot be sued for defamation for what is in a legal filing or statements to the court. So the fact that Oberlin’s filings are lies, in your view, doesn’t mean anything legally and cannot be used to conclude Oberlin’s administrators are liars in other circumstances. On the question of actual malice, it’s important to understand that this is a legal term and not the commonsense meaning of malice as hatred or meanness. Actual malice is intentionally making a false statement, or with reckless disregard, and in fact Oberlin administrators had good reason to think Gibson’s might be racist, which was the fact that numerous black students claimed it was and told them so, the same students who staged the protest.
No. Sure, you can’t be sued for what’s in a court filing, but this can be used to impeach your credibility and demonstrate you’re a liar. These are two different things.
A statement counts as an opinion rather than an averment of fact when the the grounds of the statement are disclosed to listeners, so they can evaluate it for themselves. So if Oberlin had just said: “We think the Gibsons might be racist because some of our black students say they got some bad vibes when they were in the store,” then sure, that’s opinion. But that’s not what was stated on the flyer.
To the contrary though, such a falsehood would indeed cast doubt on other statements and actions, especially regarding the college’s participation in defamation, and I wouldn’t doubt the jury also made such an inference. If I were a dean and I believed one of my students had been physically assaulted by a shop employee because he was black, enough so to put that statement of fact in a court filing, I would probably also have a reckless disregard for the truth in other matters regarding that shop as well.
More broadly, however, at this point I’m having trouble pinning down your argument. I was under the impression that your objection was that the ruling could chill free speech because it classified opinions as defamation (thus the “danger” in your title), and I think that could certainly be something worth debating. I would especially highlight your nuanced illumination of one of the common refrains of the plaintiffs in the trial and beyond, namely that Oberlin did not do enough to “calm” its students. I agree: This line of complaint strikes me as a thinly-veiled call for censorship, and therefore something that coverage of the case might do well to pay more attention to.
However, your subsequent reply becomes muddied, because I didn’t think your objection was to the facts of the case, i.e. that the students shoplifted and then physically assaulted the shop employee as he tried to detain them, or that the college acted with reckless disregard for the truth if the utterances were indeed statements of fact. I suppose if you are under a different impression as to the facts of the case, it’s less clear to me what you are arguing here, but I would note that trials, juries, and courts are the institutions society has set up to make ultimate determinations of these truths, so for my part I would need some extraordinary evidence to doubt such basic things as who assaulted whom or whether documents revealed in discovery constituted legal malice.
I’m making multiple arguments against this ruling, both factual and legal, so it can be confusing. But some of the arguments I am asserting are a) the student accusations of racism are protected opinion and not defamation; b) Oberlin did not defame Gibson’s (and certainly did not act with actual malice and with reckless disregard); c) Oberlin did not aid and abet defamation; d) to aid and abet defamation is not a legally valid type of defamation under the First Amendment; e) boycotting a business is not tortious interference. Judges and juries do determine the facts in a case, but they are still obligated to follow the laws and the Constitution, and also they cannot disregard the facts in order to punish a disliked defendant.
(I can’t respond to the thread for some reason, so resuming here.)
Gertz v. Welch (1974) did away with strict liability for libel – that is: a person cannot be sued for publishing a damaging falsehood if they made a reasonably prudent effort to verify the assertion. So Gertz v Welch upheld that even if the accused intended no harm, negligence alone made them liable.
Do you intend to argue that Oberlin officials made a reasonably prudent effort to conclude that the single arrest was racially motivated? (The accused pled guilty.) Or that a history of racially-motivated mistreatment of customers existed in the past?
How would such a thing be prudently confirmed, even hypothetically? Especially given that mere days elapsed between the incident and the publication of the fliers, leaving very little time for such confirmation to take place?
Can we agree that First Amendment protection either does not extend to Oberlin officials, or that Oberlin must furnish proof of a reasonable care taken to verify their accusation in order to claim this protection?
What an embarrassing analysis. I hope the writer isn’t a lawyer, or teacher.
If Oberlin had remained neutral, no lawsuit would have been brought. Gibson’s did not expect the College to censor its students; neither, however, did they expect Oberlin to actively support and foment a campaign to terrorize them and ruin their business. What Oberlin and its students did to an innocent family was outrageous and sailed way beyond free speech. Claiming someone is racist is one thing–although it can be as damning as claiming someone is a child molester–whereas actively working to destroy reputation and livelihood is quite another.
It seems to me that some, if not all, of the black students at Oberlin may have been made to feel so self-important by the College and had become so self-centered that they could not conceive of being profiled simply because they were Oberlin students, irrespective of their race, because of a demonstrated propensity of Oberlin students generally for shoplifting and using fake i.d.s for underage liquor purchases. In aid of political correctness, the College abandoned it’s educational mission by failing to instruct these students that they were nothing special age and should get over themselves. It could have been, as they say, a teachable moment, rather than a missed opportunity.
It’s amazing to me how such a mindless discussion has grown to this extent. The Oberlin SJW ‘s message was not that Gibson’s Bakery should be boycotted because of subjective opinions held by some of Oberlin’s (black) students. The SJW’s message was that Gibson’s Bakery should be boycotted because its owners and employees had a history of detaining and prosecuting shoplifters if they are black but looked the other way if they were white. That’s what racial profiling would amount to in this case and, although opinions differ as to whether profiling of any kind is a good idea or a bad idea, whether it happened or not is a question of fact and not a matter of opinion.
It’s like saying, “I have no idea whether Gibson’s is racist but, if the students say they are and the College doesn’t disagree, Gibson’s should be closed down whether they’re racist or not because the uninformed opinions of the students are more reliable than the facts.”
At Oberlin College, opinions are better than facts, belief is better than truth, and ignorance is not merely aspirational.