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Gibson’s Bakery v. Oberlin College — 1st week wrap-up — Silence may not be golden for the defense

Gibson’s Bakery v. Oberlin College — 1st week wrap-up — Silence may not be golden for the defense

Can the college be held liable for the actions of students, faculty and staff?

https://www.youtube.com/watch?v=qw2Sk_JTaXA

Last week I covered the final trial motions, jury selection, opening statements, and first day of witness testimony in Gibson Bros. v. Oberlin College.

I will continue to observe the trial this week from inside the courtroom, and will report daily each evening.

With the first witness in the trial last week, a key issue was brought up.

The small bakery/convenience store owner had asked the college that it put out a statement saying that Gibson’s was not racist and to send that out to the 2,800 students and 1,000 professors/employees at the school.  This would have been well after the protest had ended by students that claimed the business was racist.

Such a declaration to the student body and college community may have prevented this lawsuit. But Ferdinand Protzman, the college’s chief of staff, told the jury during his testimony an interesting reason as to why the school didn’t put out any statement.

“We told them we could not issue a statement saying they were not racist because we never said they were,” he said.

It is that statement that sums up how Oberlin College is defending itself against the claims it libeled and defamed Gibson’s after the events of early November 2016.

As a reminder, three students were arrested and charged with shoplifting and criminal trespass on Nov. 9, and the student body launched a two-day protest claiming the arrests were racial profiling and that Gibson’s was racist. The plaintiffs assert the college assisted and amplified these accusations. The three African-American students eventually plead guilty and admitted racial profiling was not an issue with their arrest. Some background on this case can be found here.

Oberlin College is claiming the school had nothing to do with the protest or the repercussions of economic loss and reputation damage, as Gibson’s says they have suffered. In short, the school has insisted to the jury that only three individuals can speak for the college: the president of the college, the chair of the board of trustees, and the dean of students – Meredith Raimondo, one of the defendants. The students and professors and employees of the college are not part of the school message legally speaking, is how this defense argument goes.

“Theirs are their own, not ours” is a rough paraphrase of the overall theme the college’s attorneys are portraying to the jury.

But it has some legal holes, and it will be interesting how the plaintiffs attack this argument this week, and how the jury perceives this as they decide the case.

In the old days, verbal conversations between individuals were not recorded, resulting in a he said/she said dispute which presented possible evidentiary and admissibility problems. But social media technology has rapidly advanced, and text messaging and Facebook posts and tweets have created a record of such communications.

In short, the backyard conversation in now online and seen by many and retrievable. Social media has had a huge impact on how we define what is evidence and the courts are trying to figure out what it all means in civil cases like this.

Judge John R. Miraldi has ruled that the protest chants and signs heard and displayed at the protest are not admissible, because they are not part of the official Oberlin College “voice.” But he is allowing many texts and online posts from employees and professors at the school relating to Gibson’s and the racism allegations. The attorneys for Gibson’s are claiming these really are examples of the college’s official views and evidence of malice; the attorneys from Oberlin College will claim they are just personal opinions and irrelevant.

There are three interesting pieces of evidence that will come up in this online private opinion vs. school-backed message discussion.

Protzman testified that the different groups in the school – academic departments, athletic teams, student groups, for example – all have Facebook pages, but the school oversees them in terms of content. What this means is that the school can ask the various school-affiliated groups to take down messages or posts that are against the school’s public image of damaging to other individuals or groups.

On Nov. 12, 2016, according to the evidence presented in court, the Oberlin College Department of Africana Studies posted a massage on their Facebook page that said, “Very proud of our students! Gibson’s has been bad for decades, and their dislike of Black people is palpable. Their food is rotten and they profile Black students. NO MORE!!”

By allowing it to remain on the school-approved Facebook page, was the school endorsing and approving the message? Could itsnon-action be interpreted as approval?

Tita* Reed, a special assistant to the president of the college at the time who worked on governmental and community affairs issues, sent an email to her boss asking that Gibson’s drop the shoplifting charges as part of a deal: “So can we draft a legal agreement clearly stating that once charges are dropped the [purchase] orders [with Gibson’s] will resume. I’m baffled by their combined audacity and arrogance to assume the position of victim.”

Reed testified last week that that email was just “thinking out loud,” merely her opinion and not part of work. The plaintiffs’ contended that is was evidence of the school’s plan to damage Gibson’s reputation in the community if they didn’t cooperate, and very much a part of her work.

A text message sent by associate professor of music theory Jan Miyake (and shared with multiple deans and professors at Oberlin College) is another example of this message ownership, according to what was presented in court. It said, “So heres one rhing on my mind about gibsons. They own so much prime property in oberlin that boycotting doesnt hurt them that much. The smear on their brand does, and that’s been taken care of.”

During her deposition prior to the trial, Miyake explained her message, saying , “So the — I — it’s –—that hurts to have your brand smeared. So boycotting them doesn’t really hurt them, but having your brand hurt [does].” When asked what she meant and how Gibson’s brand was smeared, she said, “They protested outside the store for three days chanting, ‘Racists.’”

Miyake is a 1996 graduate of Oberlin College and has been teaching at the school since 2002. Again, the school’s attorneys are professing she is a professor there, nothing more, and her views are her own. The attorneys for Gibson’s are countering she has had a long history with the school, and her message was never condemned in any way by the school as being factually wrong or not their view. Meaning they approved of what she texted, by inaction if nothing else.

And that may be a key question for the jury. Does silence by Oberlin College portray approval? Or is their silence legally irrelevant? This may be addressed by the Judge in jury instructions.

The case resumes Monday in Lorain County Common Pleas Court with a continuation of Gibson’s case.

*The spelling of this name has been corrected. Additionally, the subheadline was changed. In a pre-trial ruling, the court ruled that the Facebook post by the Africana Studies Department was protected opinion.

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

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Comments

The garbage that infests the likes oberlin can be removed politically and monetarily.

Hopefully, this lawsuit breaks their bank, and enough prospective students stay away.

But fed funds should be withheld.

JackinSilverSpring | May 12, 2019 at 8:05 pm

The problem with colleges these days is that they provide students with courses that are less useful than basket weaving. An example at Oberlin is Africana Studies. After amassing beaucoup bucks in student loans, graduates of these departments are going to be unemployable. In the meantime those students view everything as race and are useless idiots for race baiting professors.

    alaskabob in reply to JackinSilverSpring. | May 12, 2019 at 10:47 pm

    Africana Studies…. Africa looks better the further you are away from it or further in the bush. For the price of tuition going to Africa is cheaper and the resulting education truer. But if Black you are almost just another face in the crowd and not Black enough for reactionaries. If you want to see Africa as seen at Oberlin…go to a Marvel movie.

    Africana studies is perfect for a do nothing job in government.

    SpaceInvader in reply to JackinSilverSpring. | May 13, 2019 at 1:22 pm

    They aren’t unemployable. They are all getting jobs running our government.

“Protzman testified that the different groups in the school – academic departments, athletic teams, student groups, for example – all have Facebook pages, but the school oversees them in terms of content. What this means is that the school can ask the various school-affiliated groups to take down messages or posts that are against the school’s public image of damaging to other individuals or groups.”

And this in a nutshell is the whole “platform vs publisher” problem that Facebook / Twitter / YouTube face: Oberlin is clearly exercising control of what appears on their platform by deciding what can and cannot stay visible on it. That means that the content they allow to stay has at least their implicit endorsement and approval, otherwise they would take it down.

Exercising control, rather than leaving it to the users to block / avoid the content they find offensive, makes Oberlin and other social media sites publishers who are liable. End of argument.

    Milhouse in reply to SDN. | May 12, 2019 at 11:18 pm

    And this in a nutshell is the whole “platform vs publisher” problem that Facebook / Twitter / YouTube face

    No, it is not, and no matter how many times you say it it won’t become true. The CDA explicitly says that interactive computer services, such as Facebook, Twitter, Youtube, and the comment section here at Legal Insurrection, can delete content they find offensive or undesirable without thereby becoming publishers. That is the law, and there was never even the slightest hint of an expectation that such services would exercise this authority in a politically neutral way.

      The Packetman in reply to Milhouse. | May 13, 2019 at 6:26 am

      Milhouse,

      Rather than down-vote you, I’m going to ask you to provide a cite to the part of the CDA that “explicitly” allows online platforms to do what you claim.

      We’ll be waiting.

        Milhouse in reply to The Packetman. | May 13, 2019 at 10:41 am

        (1) Treatment of publisher or speaker

        No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

        (2) Civil liability

        No provider or user of an interactive computer service shall be held liable on account of—

        (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

        (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).[1]

          Brave Sir Robbin in reply to Milhouse. | May 13, 2019 at 6:52 pm

          “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”

          However, if organization “X” owns or manages provision of content, and an employee or representative of organization “X” posts certain information on that site, then it is reasonable to construe that content was not provided by “another information content provider,” but rather by organization “X” itself, which has a responsibility to provide proper oversight and management of its employees and representatives. Therefore, organization “X” can be held liable for content posted by its employees and representatives as it is not “another information content provider,” but rather the content provider itself that is providing the information. Posting on the internet does not give you a right to liable and defame just because you own or manage a content provider.

          Milhouse in reply to Milhouse. | May 14, 2019 at 12:58 am

          True but irrelevant. Facebook / Twitter / Youtube employees don’t post objectionable information on their sites; instead they delete information that they object to. Pre-CDA that would have made them publishers, which would have made the entire concept of online forums impossible. Which is why the CDA was passed, explicitly allowing them to delete content they don’t like without becoming publishers.

          Brave Sir Robbin in reply to Milhouse. | May 14, 2019 at 8:19 pm

          Not irrelevant at all. One of the allegations by plaintiff is that Oberlin employees used Oberlin sponsored/sanctioned/controlled sites to libel and defame Gibson’s. Therefore, though your characterization of the CDA is correct, it is your application of the CDA which I find irrelevant in this particular case. Perhaps we are talking past each other.

      venril in reply to Milhouse. | May 13, 2019 at 10:45 am

      A recent Law Review article offers a good review of the issues. One of the primary concerns was of ‘collateral censorship’ by providers.

      “More specifically, the nondefamatory speech lost to collateral censorship will often be vulnerable speech.
      126. If websites default to accepting a mere prima facie case for defamation as grounds to censor content, some of the collaterally censored speech will be communication that fits into the various well-justified exceptions and privileges to defamation claims.
      Individuals who want certain speech taken down sometimes file illegitimate content takedown requests.
      127. See Jeffrey Cobia, Note, The Digital Millennium Copyright Act Takedown Notice Procedure: Misuses, Abuses, and Shortcomings of the Process, 10 Minn. J.L. Sci. & Tech. 387, 391 (2009).
      This dynamic allows the majority to suppress minority views or could constitute a potential heckler’s veto.
      128. Brett G. Johnson, The Heckler’s Veto: Using First Amendment Theory and Jurisprudence to Understand Current Audience Reactions Against Controversial Speech, 21 Comm. L. & Pol’y 175, 176–77 (2016).
      The speech that is the first to be collaterally censored may be the most vulnerable and least likely to appear through alternative channels. At its core, the First Amendment seeks to protect unpopular views
      129. See John Hart Ely, Democracy and Distrust 112 (1980); Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994).
      — unobjectionable views are less frequently jeopardized. As noted above, because of the cost of additional content moderation, some websites may turn to algorithms for assistance. Yet recently, algorithms have fared no better in protecting marginalized speech: Google’s artificial intelligence moderation system that seeks to highlight toxic speech accidentally flags sentences such as ‘I am a gay woman.’

      Or, in this context, “I am a conservative male.”

      While these are indeed private companies, afforded protections under SS 230 of the CDA, in the interest of protecting free speech online, I suggest that protecting a cartel of media companies that operate in unison, with a political movement and national political party, to suppress the speech of other individuals or organizations that express non-defamatory opinions contrary to the narrative put forth by the said cartel, is emphatically not what the legislators envisioned when the safe-harbor was created.

The big problem for Oberlin is that their failure to attempt to control the public actions of their employees amounts to acceptance, if not support for those actions. That members of the administration of the college actively discussed ways to damage Gibson’s, without any evidence that the senior administration made any attempt to stop it, and even went so far as to actively participate in a program to harm Gibson’s, by refusing to continue using them as a supplier creates a very strong case that the College actively attempted to damage the business to advance a philosophical position which the university supported. That the basis for that philosophy, that Gibson’s was racist, was false will eventually cost the college a lot of money.

    Tom Servo in reply to Mac45. | May 13, 2019 at 8:24 am

    For hundreds of years, the common law doctrine has been that “Silence implies Consent”. And as far as the claim that “i was just thinking out loud” – if this was a criminal trial, maybe. (Even then, it speaks to mens rea) But in a civil trial, where the whole game is to find evidence of Malice (which is nothing but thoughts and intentions) then Yeah, if you “think out loud” in a way that is memorialized and can be testified to (like when you put it into an email that you send to someone else) then Yeah, that is completely actionable and is a useful piece of evidence, and it goes directly to the point of what the other side is trying to establish – ie, Malice.

Given the response to an employee doing or saying something that seriously embarrasses a University is to throw them out the door so hard they bounce, it seems hard to believe that Oberlin, as an institution, felt any shame or embarrassment at all over what their employees were getting up to.

At best, it was grossly irresponsible of them, and a rather serious breach of contemporary university best practices.

“We told them we could not issue a statement saying they were not racist because we never said they were,” he said.

Is it just me or is that a complete nonsequitur? I have never said that Ferdinand Protzman is a rapist — indeed the thought that he might be one has never crossed my mind — and yet I would have no problem stating that to the best of my knowledge and belief he is not one.

    Tom Servo in reply to Milhouse. | May 13, 2019 at 8:28 am

    classic passive/aggressive behavior, the specialty of administrators everywhere. They passive/aggressively communicate their intentions to their agents and underlings, then stand back and say “I never said that! I never told anyone to do that!!!”

    Much like Henry II, “Will no one rid me of this Troublesome Priest???” He claimed he was just thinking out loud, he never told his henchmen to go out and murder Becket. But nobody else ever saw it that way.

    Observer in reply to Milhouse. | May 13, 2019 at 10:33 am

    “We told them we could not issue a statement saying they were not racist because we never said they were,” he said.
    _________________

    That defense is both idiotic, and factually untrue. Oberlin claims that only three individuals can speak for the entire university, and one of those three individuals is dean of students Meredith Raimondo. There has already been testimony that Raimondo was on the street in front of Gibson’s during the student protests, handing out a flier that said Gibson’s was racist. So in fact, Oberlin, by its own admission, did say that Gibson’s was racist.

    But even if Oberlin had not done so, there was absolutely nothing preventing the university from issuing a statement denying that Gibson’s was racist — nothing, that is, other than Oberlin’s own obvious malice towards Gibson’s. Oberlin could have easily issued a statement that said something like: “Many students have made accusations of racism against Gibson’s, but these accusations appear to be unfounded. We are not aware of any evidence that Gibson’s ever profiled anyone by race, the three Oberlin students recently arrested for shoplifting at Gibson’s have admitted that they were not racially profiled, and to our knowledge there have been no incidents of racism or racial intolerance at Gibson’s.”

Gibson’s has been bad for decades, and their dislike of Black people is palpable. Their food is rotten and they profile Black students.

The first sentence is opinion, and therefore cannot be defamation. The second sentence contains two statements of fact; if either of them is not true, that’s defamation.

Interestingly, the first clear description I remember reading of the distinction between opinion and statements of fact gave as an example that when reviewing a restaurant you can get away with saying the food was lousy, but not that it was rotten, unless it actually was. Lousy is opinion; rotten is fact, and if false it’s defamation.

    JusticeDelivered in reply to Milhouse. | May 13, 2019 at 11:46 am

    People should understand that framing something as a question is a tactic to use to tar them.

    For example, Rags, have you been diagnosed with a mental illness 🙂

    But since Rags is an alias and we are not referring to the actual person, I don’t think a case could be made for defamation.

    Henry P in reply to Milhouse. | May 13, 2019 at 5:08 pm

    To me, “….and their dislike of Black people is palpable” certainly sounds like a statement of fact and not opinion.

      Milhouse in reply to Henry P. | May 13, 2019 at 5:39 pm

      No, it’s opinion. Dislike is obviously not literally palpable; it’s an emotion, and without telepathy one can never know for a fact what someone else is feeling, but can only form an opinion on it.

        Brave Sir Robbin in reply to Milhouse. | May 13, 2019 at 7:00 pm

        “….and their dislike of Black people is palpable”

        I dissent from Milhouse on this particular. I think this can be reasonably construed as a statement of fact.

        Anyway, it really does not matter what we think, but rather what the judge and jury thinks of the matter. And they can think anything they want which is why you are always taking a great risk by going to trial.

JusticeDelivered | May 12, 2019 at 11:26 pm

I visited my 90 year old father yesterday, he has advanced degrees in both English and history.

He mentioned that Oberlin has a long history of promoting black causes. That may be worth researching and presented as an article on LI.

“Oberlin College (1833- ) • BlackPast
https://www.blackpast.org/african-american-history/oberlin-college-1833/
Oct 25, 2010 – In 1833, Presbyterian ministers John Jay Sipherd and Philo P. Stewart founded the institution as a college preparatory institute to promote Christian values. Oberlin’s progressive history began during the antebellum period. … Oberlin continued to be an important institution for African Americans for the next century.”

    healthguyfsu in reply to JusticeDelivered. | May 13, 2019 at 1:16 pm

    and there’s nothing wrong with that.

    It’s also completely irrelevant to this trial.

    Oberlin College had a long and honorable history of fighting for true “social justice” before the Social Justice Warrior crowd seized control of the phrase and turned it into a synonym for hatred and mob violence.

    Oberlin was the first coed college in the U.S. and the first integrated college in the U.S., and both of these happened in the mid-1830s, just a few years after the founding of the College. In the period preceding the Civil War, Oberlin College was staunchly abolitionist, and played a major role in the Underground Railroad. This is chronicled in Nat Brandt’s 1991 book “The Town That Started the Civil War: The True Story of the Community That Stood Up to Slavery — and Changed a Nation Forever”.

    In the era when I was a student, the issues of the day were Viet Nam, Civil Rights, and Women’s Lib, and I think the prevailing sentiments among the student body (anti-war, pro-equal-treatment) were legitimate. Also, in that era the administration behaved like the grown-ups in the room.

    But between then and now, something has gone seriously wrong. The College has become so anti-Semitic that students there think throwing a rock through another student’s window is a legitimate political expression if the student has an Israeli flag in their window. We used to condemn intimidation tactics like that and associate them with the KKK. Nowadays, students think that counts as “progressive” political activism. And instead of the administrators acting like grown-ups, Oberlin Vice President and Dean of Students pours gasoline on the flames.

My personal opinions be one a problem for my employer when I’m sharing those opinions via my work email address and I’m part of an organising group using my employers property, time and facilities to agitate against xyz.

Overall, I think Oberlin’s “defense” is weak, to the point of being nonexistent. Rather than denying any of Gibson’s claims, they’re just saying “sure, people at the school did everything you say, but that was just them, that wasn’t us, we sat up here and we didn’t do anything at all, so nanny nanny boo boo.”

Juries just about always HATE that style of defense, no matter what kind of defendant is using it. Oberlin is setting itself up for a major loss in this one.

    JusticeDelivered in reply to Tom Servo. | May 13, 2019 at 9:56 am

    “Oberlin is setting itself up for a major loss in this one.”
    I hope that is the case, Oberlin should be hit for punitive damages in terms of hundreds of millions. That would bring tears to their eyes and put academia on notice that their BS is not acceptable.

    MajorWood in reply to Tom Servo. | May 13, 2019 at 12:53 pm

    In assessing damages here, I think it would be important to determine how Oberlin College might have benefited from these actions. By acting in a way which could tarnish Gibson’s image, they would have been improving their image by appearing more edgy and relevant, which in turn could have acted to attract more qualified students who would see that as a positive. In terms of risk/reward, I could envision an administrator thinking that risking a $50K lawsuit is worth it if more students then come to campus. So, one could then calculate the expected number of students to matriculate as a result of the protest, lets say 12, who are there for 4 years at $60K/per, so right there Oberlin could have benefited by $2.88M in additional tuition. In keeping with established practices of tripling actual damages/benefits, we come to $8.6M, which is now in the ballpark of 1% of the value of the endowment at the time of filing ($880M), which is a number I suggested sometime awhile ago. Unlike the recent ovarian cancer/talcum powder settlement (Whaaaa?), I think there needs to be a rational basis for assigning a value to the punishment which fits the crime.

American Human | May 13, 2019 at 1:44 pm

Okay, some questions:
1 – how is this different from a high school or county dept. of Ed punishing teachers that wear a necklace with a cross on it?
2 – If, in this case, Oberlin can claim they’re not responsible for what these members of the Oberlin community (on the Oberlin Facebook page) say or imply, then how can this not apply to a school or State Dept of Ed. or whatever, stopping children or teachers from praying in school or wearing religious jewelry and such?
3 – If Oberlin is “not responsible” then how couldn’t the high school be “not responsible” also and thus throw out the whole idea of sponsoring one or another religion just by a teacher wearing a cross necklace or star of David etc.?

It’s pretty simple. Oberlin’s employees were discussing boycotting Gibsons and Oberlin boycotted Gibsons. Therefore these employees used the University to punish Gibsons. They weren’t just independent people their actions were actions of the university.

    Observer in reply to ConradCA. | May 13, 2019 at 6:17 pm

    Yep, they were Oberlin’s employees, acting within the scope of their employment. Therefore, Oberlin’s is responsible for their tortious actions. Respondeat superior.

*Tita Reed, not Tito.

What’s interesting from my perspective, as someone who watched the protests transpire over three days, is that whether or not Raimondo was trying to calm the situation, she wasn’t. More bizarre, though, was her (and the rest of the admins) failure to notify the children that were protesting that they were on a public sidewalk. Jason Hawk, the journalist, testified that he was blocked from taking photos. But, I saw this happen with anyone who tried to photo or film. Memorably, I saw one young, white (rich?) girl run about thirty yards down the sidewalk to block an older, black man from taking a photo. She yelled at him that he didn’t have “consent” to take pictures.

Nevermind Jon Snow, these are the know-nothings.

blacksburger | May 13, 2019 at 5:48 pm

AIUI Oberlin was the first college in the US to admit blacks on terms of equality with whites.

It’s a tremendous pity that they have abandoned their policy of non-discrimination.

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