Previewing Gibson’s Bakery v. Oberlin College trial: ‘Social Justice’ free speech or defamation?

Previewing Gibson’s Bakery v. Oberlin College trial: ‘Social Justice’ free speech or defamation?

With Gibson Bros. v. Oberlin College scheduled to start trial this week, there is much back and forth among political and legal analysts as to “what it is” and “what it is not.”

For the most part, regardless of the political leanings of the various parties observing from the outside, this is still a basic tort law case involving libel and defamation.

Such cases are simple in some respects (did what the defendant said or did harm the defendant?), and some can be complicated at the same time (did the defendant have the right to say or do such things under their right of free speech?). There are laws written to define such actions, previous appeals and high court cases that interpret such findings, and ways that times and eras and regions of the country interpret things slightly differently.

Such will be the case in the Elyria, Ohio courtroom. As U.S. Supreme Court Justice Potter Stewart said about pornography in 1964, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [hard-core pornography]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it …”

I am thinking both the county common pleas court judge and the jury will have similar views of the judgement that they will make in this case; meaning that there will be lots of personal viewpoints of “what is” and “what isn’t” here, and it won’t be easy to measure everything under complicated legal interpretation, but they will know what they see and hear.

I will be covering this daily starting this week for Legal Insurrection, and use my unbiased reporting skills (30+ years in this biz) to tear down all the irrelevant sniping and get to what matters. You can read my previous coverage of the case here, Why Can’t Oberlin Fix a Lingering Town vs. Gown Battle?

For this preview, I won’t get into the specifics in great detail, and William Jacobson and others have covered it in great and very interesting detail.

In the end, though, it is very basic: three Oberlin students were shoplifting when at Gibson’s, there was a scuffle between the shoplifters and the Gibson family member who was working that day, an arrest followed of the three, and they were able to plead guilty to misdemeanors and get probation without any fines and a short probationary period..

That part of the story is pretty much undisputed.

What happened next is of dispute. Oberlin College students insisted the arrest and scuffle involving a white shop owner and African-American students was racist at its core and they protested outside the store. Oberlin College administrators and professors took part in various ways, and the Gibson’s Bakery and Market suffered economic and reputation loss from the protests.

This also all took place in the week that Donald Trump was elected president. Oberlin College President Marvin Krislov and Dean of Students and Vice President, Meredith Raimondo (a named defendant in this case), sent out an email letter to students, university professors and other employees that week that said, “This has been a difficult few days for our community, not simply because of the events at Gibson’s Bakery, but because of the fears and concerns that many are feeling in response to the outcome of the presidential election.” 

Oberlin College explained things this way in their Defendants’ Trial Brief:

Defendants are not liable for the speech of Oberlin College students or the independent actions of College employees. Colleges are not vicariously liable for the torts of their students because they do not stand in loco parentis, meaning that they are not charged, factitiously, with a parent’s rights, duties, and responsibilities.” State v. Abubakar, 10th Dist. Franklin No. 11AP-440, 2011-Ohio-6299, at 19, citing State v. Noggle, 67 Ohio St.3d 31, 33, 615 N.E.2d 1040 (1993). Ohio courts have concluded that there is “no authority establishing that colleges and universities act in loco parentis’ with respect to their students(.)” A.M. v. Miami Univ., 2017-Ohio-8586,88 N.E.3d 1013, 940 (10th Dist.). Stated differently, there is no requirement of the law… placing on a university or its employees any duty to regulate the private lives of their students, to control their comings and goings and to supervise their associations.” Hegel v. Langsam, 29 Ohio Misc. 147, 148, 273.

Further, an employer is not liable for the “independent, self-serving conduct of its employee/agent which does not so facilitate its business,” including for alleged defamatory comments made by its employees. Corradi v. Emmco Corp., 8th Dist. Cuyahoga No. 67407, 1996 WL 65822, *3 (Feb. 15, 1996). An alleged defamatory statement is within the employee’s scope of employment when “made in the furtherance of [the employer’s] business and under the general direction of the employer.” Lamson v. Firestone & Rubber Co., 9th Dist. Suminit No. 14692, 1991 WL 35098, *3 (Mar, 13, 1991).

Gibson Bros. explains things like this in Plaintiffs’ Trial Brief:

Plaintiffs contend that Defendants, including their agents and employees, made or published, on numerous occasions over the course of almost two years, numerous written defamatory statements which have injured and damaged Plaintiffs reputations. A claim for libel contains five (5) elements: (1) a false and defamatory statement; (2) about plaintiff; (3) published without privilege to a third party; (4) with fault of at least negligence on the part of the defendant; and (5) that was either defamatory per se … or caused special harm to the plaintiff.

The evidence to be presented at trial will demonstrate that Defendants, including several employees who were acting within the scope of their employment, made or published several written statements which defamed Plaintiffs. The defamatory statements include a flyer which stated that Plaintiffs were racists and has a long account of racial profiling and racial discrimination, which was initially published during the November 10-11, 2016 protests in front of Gibson’s Bakery. The evidence will also demonstrate that Defendants aided and abetted others in the publication of several written defamatory statements by providing substantial assistance to those persons….

Defendant Oberlin [College] failed to follow its own student policies, permitted its own employees to violate those policies, and permitted numerous employees to libel Plaintiffs.

Politics and cultural dystopianism will likely be kept out of the court room in testimony, given that this is a tort law case and the political party of the defendant or plaintiff usually do not matter. But political thinking will come into play in three areas, at least in the minds of the jury. Here are those three:

1) It is fairly common for defamation cases to involve public figures such as politicians, celebrities and athletes.  And they usually involved a media company.

The United States Supreme Court ruled in the landmark New York Times v. Sullivan decision in 1964, that there is a higher standard for defamation when the plaintiff is a public official  In this case, Sullivan, a police official, sued The New York Times for publishing an advertisement on abuses of civil rights protesters by an Alabama police department. Sullivan alleged that the ad inaccurately reported important details of the event in question.  The Court ruled that public officials must show actual malice on the part of the publisher of the defamatory remarks.

But in this case, the Lorain County judge ruled in his preliminary rulings that the Gibson Bros and their business are private. Private individuals who are suing for defamation only must prove that the defamer showed negligence in their actions, rather than the more stringent reckless disregard for the facts as is the case if the defamed is a public official.

What this means is that it takes much of the First Amendment freedom of speech defense Oberlin College might have tried to use out of the equation. In other words, motive of actions will be largely be less relevant for the jury. Instead they will be instructed to consider results of actions.

Plus no real media involved. So for those who want this case to be some reaction to the liberal, fake news media, go somewhere else. This is about one private entity being accused of defaming another private entity. With political party blaming as the wallpaper in the background.

Which brings us to what type of jury this might be.

2) Lorain County has changed quite a bit in the past 20-30 years in terms of the people that live there.

It was once a white-collar, bedroom community with bigger Cleveland on its eastern side, and a manufacturing job worker spot for its cities of Elyria (pop. 54,000) and Lorain (pop. 64,000).

The county lost 40% of s manufacturing jobs between 1990 and 2017, going down from about 27,000 to about 16,000 during that time. What has happened in those 25+ years is that household income has dropped about 9%, and the poverty level has gone up, from 10% of the population up to 13%. So the people on this jury might be less wealthy and more pissed off than they used to be.

Add to that the fact that the Lorain City Schools districts have scored very low on test scores in the past few years that they have been placed under academic distress and are under the purview of a state-appointed commission.

What this means is that the jury on this will likely be favorable to an “us versus them” way of thinking as they think this case through. Oberlin, both the village and the school, have never been much of part of the Lorain County scene, either intellectually or economically. When Oberlin was founded and came of age in the 1800s, Cleveland was the Gilded Age’s industrialization capital, and school professors and their students were drawn to Cleveland because of money, entrepreneurship and scientific research.

It is not a new concept: small colleges are not often liked by the town or county they reside in. What one needs to understand about Oberlin (founded 1833) and other small liberal arts colleges in Ohio – like Denison University (1831), Kenyon College (1824), Ohio Wesleyan University (1842), and College of Wooster (1866) – is that they were founded as outposts for the east coast wealthy who were either not legacy material for the Ivy League schools, or weren’t quite smart enough for Harvard or Yale either. These small Midwest  schools were for the 19th century new rich, but not so much for the commoner populace around them.

Many may think this is a minor point, but for those of us who lived in Cleveland and watched the liberal, small college power in the state through the years see it a little differently. They used to have tons of power. Not so much now.

Perhaps they will be seen as a bully that picked on a small local business and didn’t see their good neighbor role of the university in the “towns and gowns” collaborative. Again, in 1990 probably wouldn’t have mattered as much. Today, it might.

One last point on this perception issue. Think of what Oberlin College tried to do to combat this. They tried to move the case to Cleveland, claiming the venue in Lorain County would be biased. They cited bad comments online on the post by the local papers’ stories on the case. They didn’t think there was a home field advantage. The judge ruled against that and kept the case at home.

3) The last point is that politics might come into jury play based upon a few basic suppositions.

Lorain County has always been a Democratic stronghold, based on the fact that this county just west of Cleveland grew during manufacturing job growth and the union membership that came with that. Those are now less important, give the manufacturing job loss and the leftovers from the foreclosure mess.

The county population, for example, is 4 years older one average that the average American (42.2 versus 38.1), and their property values are one-third less than the national average.

Lorain County voted for the Democratic candidate for president in every election since voting for Ronald Reagan in 1984. Barack Obama won both times in 2008 and 2012, taking more than 55% of the vote in both elections.

But in 2016, Hillary Clinton and President Donald Trump virtually tied each other in Lorain County, both taking about 47% of the vote (she won by about 100 out of 130,000 votes).

What does this mean as far as a jury goes? Maybe nothing. But maybe, just maybe, a jury with an older population, mostly white, older and less than good future prospects for their children in terms of education and employment, half of whom voted for Trump over what they saw as a liberal woman, well, maybe a jury with those personality characteristics might see a liberal, elite college as being in the wrong when some of its employees and students passed out flyers that said a local cookie maker  — which had operated a business in town for more than 100 years — was racist.

Not to say the judge won’t instruct them not to think that way. But as we all know, juries tend to follow their judge’s instructions as much as they follow their emotional thinking on cases like this.

Daniel McGraw is a freelance writer and author in Lakewood, Ohio. Follow him on Twitter @danmcgraw1

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WAJ Note: We will have end-of-day wrap ups every day, starting with pre-trial motion arguments on April 30 and May 1, and jury selection and trial starting May 2. There will be weekly wrap-ups on weekends. Of course, we will report on the verdict. The trial is expected to take one month. This is a project of the Legal Insurrection Foundation. Your support to make this type of coverage possible is appreciated.

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