After the massive $11 million compensatory and $33 million punitive damage verdicts (later reduced to $25 million under Ohio tort reform caps) against it for defaming Gibson’s Bakery and its owners, Oberlin College could have done some soul searching as to its own conduct in nearly destroying a 135-year-old family business. Indeed, the purpose of punitive damages under the law is to serve, among other things, to cause such introspection in the hope of preventing future similar wrongdoing.

Yet Oberlin College did just the opposite.

From the moment of the compensatory verdict and continuing through the present, Oberlin College has done everything but soul searching. Instead, Oberlin College commenced a focused crisis management public relations campaign attempting to portray itself as the victim in this process by asserting that it was held vicariously liable for student speech.

After the punitive damages verdict, Oberlin College President Carmen Twillie Ambar issued a blast email and Frequently Asked Questions document pushing this framing of the verdicts:

While we deeply value the jury’s work, we do not believe that case law supports the jury’s determination that Oberlin should be held liable for the speech and actions of its students. To do so is to erode a fundamental constitutional right.

Ambar has conducted a series of media appearances pushing the narrative that Oberlin College was “held liable for the speech of its students”, something Ambar contends should be of concern “whether you’re a progressive or a conservative.” Ambar also attempts to relitigate the case by disputing witness testimony as to the efforts of Dean of Students Meredith Raimondo to spread libelous accusations; but the jury heard both sides of the story, and ruled against the defendants.

Ambar has made several media appearances pushing that narrative, including at NPR, a local media press call, a meeting with the Wall Street Journal editorial board (which does not appear to have bought the spin) and an appearance on CBS News:

“I think this decision is really about whether a college should be held liable for the speech of students,” Ambar told CBSN’s Tanya Rivero. “The college didn’t construct the flyer, the college didn’t condone the flyer, it didn’t write the Student Senate resolution. The judge held at the time that the speech the students were making at the protest was protected speech.”

These themes also were asserted by Ambar in an online conference with alumni. It was clear that many of the alumni who asked questions accepted the views of the case as promoted by the college.

There is a very major problem with the narrative that Oberlin College was held liable for student speech. It’s false.

We have covered this several times:

It is clear that Oberlin College has settled on the claim that it is the defender of student free speech as a crisis management theme.

We have explored many times why the assertion that the college was held liable for the speech of students is false. Oberlin College was held liable for the actions of its administrators, including the Senior Vice President and Dean of Students, in spreading the defamatory statements. The college may dispute the facts, but the legal theory of liability cannot be disputed.

There is a separate legal issue as to whether the accusations against Gibson’s were defamatory or constitutionally protected opinion, but that has nothing to do with the erroneous vicarious liability narrative.

Here is what the judge wrote in denying the defendants’ summary judgment motion, and allowing the libel claim to proceed to trial (Order here): [***]

It’s clear that the theory of liability was not vicarious based on student or even faculty speech but was based on the actions of Raimondo and other administrators.

There is nothing novel in a corporation being held liable for the actions of its employees, particularly senior employees and officers, acting within the scope of their employment….

I now have been able to review the jury instructions, and consistent with the judge’s prior rulings and the law, the jury was instructed that the Gibsons sought damages “for injuries caused by the Oberlin College’s employees.” There was no instruction on Oberlin College’s potential liability for the speech or conduct of students.

The jury instruction on corporate liability for the actions of employees provided in pertinent part (underlining added):

Respondeat Superior

GENERAL. Plaintiffs seek damages from Oberlin College for injuries caused by the Oberlin College’s employees. An employer is liable for injuries caused by their employee while acting within the scope of employment….

In analyzing whether an employee’s actions constitute libel, intentional interference with business relationship, or intentional infliction of emotional distress you should apply the burden of proof and elements of those claims to the evidence presented of the employee’s actions.

Against this highly organized media campaign by Oberlin College, the Gibsons finally are pushing back. Their lawyers issued a press release which reads in part:

Attorneys for Gibson’s Bakery address misleading statements made by Oberlin College

Gibson family’s legal team publishes FAQ document containing trial evidence, allowing facts to speak for themselves 

OBERLIN, OHIO, June 28, 2019 — An Ohio jury recently sent a clear message in the case of Gibson’s Bakery v. Oberlin College: The truth still matters.

After an intense trial that lasted nearly six weeks, the 134-year-old family bakery was awarded $33.2 million in punitive damages in addition to $11 million in compensatory damages. But despite the jury’s verdicts against Oberlin College and its Vice President and Dean of Students on libel, tortious interference with business relationships and intentional infliction of emotional distress, officials at Oberlin College continue to propagate a narrative that the case is an issue of free speech.

To bring further light to the testimony heard by the jury, attorneys representing the Gibson family have published a list of frequently asked questions outlining the arguments and evidence presented at trial. The 56-page document, containing court exhibits and trial transcripts, is available at www.lawlion.com and www.kwgd.com.

“In the wake of the national attention the verdict has received, we believe the public has a right to know the facts of this case as they were presented to the jury,” said Lee Plakas, managing partner of Tzangas Plakas Mannos Ltd. “When forming an opinion on this case, it is important to rely solely on the facts. The evidence presented to the jury speaks for itself.”

The record-setting judgment has attracted national attention. It stems from events that occurred in November 2016, when three black Oberlin College students were arrested following a shoplifting incident at Gibson’s Bakery. The next day, protesters descended on the small family-owned store claiming the arrests were a result of racial profiling. In a protest comprised of Oberlin students, with evidence of involvement by faculty and administrators, the Gibsons were publicly shamed as racists with a longstanding history of discrimination. And a boycott was called for Gibson’s Bakery.

“Oberlin College was never on trial for the free speech of its students. Instead, the jury unanimously determined that Oberlin College libeled the Gibsons,” said Terry Moore, partner at Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A. “Despite what spin the college places on the facts of this case, libelous statements have never enjoyed protections under the First Amendment.”

The jury was presented with substantial evidence that Oberlin College aided students in the dissemination of defamatory materials and ordered the suspension of a more than 100-year-old business relationship. In court, the college presented no evidence of racial profiling or discrimination by Gibson’s Bakery. Additionally, the students involved in the shoplifting incident confessed to their crimes and admitted the arrests were not racially motivated. 

The jury also heard evidence that the college clearly acted in ways that went far beyond ensuring a safe environment for protesters. This included passing out flyers that the Court determined to be libelous per se, issuing instructions through a bullhorn, purchasing gloves, refreshments, and food for the protesters, suggesting college facilities for protesters to print flyers, and allowing a defamatory student senate resolution to remain posted in the student union for more than a year.

“The recent efforts of Oberlin College and President Carmen Twillie Ambar to reframe this case as a First Amendment issue, while undermining the jury’s decision, should be incredibly concerning to us all,” said Plakas. “Even after the jury’s verdict, the college refuses to take responsibility for its actions.”

The Gibsons’ Frequently Asked Questions document contains trial transcript excerpts and exhibits. Obviously it presents the Gibsons’ side of the story, but does so through actual evidence introduced at the trial. It’s an interesting read.

Viewing Oberlin College’s concerted effort to reframe the case around the speech rights of students, rather than the actions of Oberlin College employees, it is clear Oberlin College has learned a lesson from the jury verdicts.

Unfortunately, it appears to have learned the wrong lesson.

[Featured Image via YouTube]

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