As you know, last Friday the jury rendered a verdict of $11.2 million against Oberlin College and Dean of Students Meredith Raimondo for compensatory damages. Allyn W. Gibson was awarded $3 million, David Gibson $5.8 million, Gibson Bros. $2,274,500.

Legal Insurrection readers heard it here first. Our Verdict post has been shared tens of thousands of times on social media.

This Timcast video going over our post has been viewed over 300,000 times (h/t to commenters and emailers on this).

Tomorrow afternoon is the start of the hearing on punitive damages, which could add up to double damages, meaning $22.4 million on top of the $11.2 million compensatory.

The compensatory damages news initially swept through conservative media and social media, but today broke through into the mainstream media at The Washington Post, The New York Times, and elsewhere.

Something interesting, but not all that surprising, has happened. The ill-advised blast email from the college’s General Counsel criticizing the jurors portrayed the college as the victim, as if the college merely was protecting the free speech of students:

As we have stated, colleges cannot be held liable for the independent actions of their students. Institutions of higher education are obligated to protect freedom of speech on their campuses and respect their students’ decision to peacefully exercise their First Amendment rights. Oberlin College acted in accordance with these obligations.

That was part of the defense previously, so it’s not entirely new, but the blast email made the point in a dramatic way. It’s a theme which is ridiculous on the facts, but plays into a narrative the mainstream media might adopt. There may have been a method to the madness.  The NY Times picked up on the claim that this is a free speech case:

The verdict raised questions about the responsibility of institutions of higher education to police students’ speech and behavior, as well as broader First Amendment issues.

Floyd Abrams, a First Amendment lawyer, said the outcome represented “a double-barreled threat to free speech on campus.”

“The notion that uninhibited student speech can lead to vast financial liability for the universities at which it occurs threatens both the viability of educational institutions and ultimately the free speech of their students,” he said on Sunday.

That is a completely mistaken take on the case. As pointed out when the General Counsel issued her email, Oberlin College was not held liable for what the students did:

Oberlin College and Raimondo were not “held liable for the independent actions of their students.” Rather, the defendants were held liable for their own conduct in aiding and abetting the publication of libelous documents, interference with business, and intentional infliction of emotional distress. Let me repeat, it was the college’s and Raimondo’s own conduct that was at issue before the jury.

I went over this in my radio interview with Michael Berry, What the media is getting wrong about Gibson’s Bakery libel verdict against Oberlin College:

If all Oberlin College had done is say, hey, students are students they can do what they want, there would not have been a case. But it was the alleged active participation of the college and its senior administrators in spreading the defamation that gave rise to the law suit. That’s a nuance that’s getting lost in some of the media coverage.

The New York Times covered this today and promoted this as an issue of free speech rights on campus. It’s not. This is not the college being held responsible for what students said. It’s the college being held responsible for its own conduct in distributing and what we call in the law, publishing, defamatory statements about the bakery.

The jury found that they acted with malice and that they defamed Gibson’s bakery and the judge ruled as a matter of law that these statements that were made and distributed by the college were not protected opinion, they were not Constitutionally protected opinion because they stated facts about the history of Gibson’s that were factual statements.”

I made the point again in a video interview with Campus Reform. (Yes, that’s my wife walking in the background, she thought I was on a radio call.)

Let’s see how heavily the defense that the college is the victim plays out in the punitive damages hearing.

What will happen in the punitive damages phase and what is the timing? We’re not sure what new evidence will be presented, how many witnesses will be called, or how long it will take. Court starts at 1:30 tomorrow because the judge has other cases in the morning.

My sense, and it’s only a sense, it that this is not going to be over in half a day. So I’m guessing we’re talking about Wednesday or even Thursday before we know whether there will be punitive damages, and if so, how much.

Of course, Dan McGraw will be in the courtroom and once again, you’ll be the first people outside the courthouse to find out.


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