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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