The Ohio 9th District Court of Appeals has just issued a decision in the Gibson’s Bakery v. Oberlin College case.For those of you new to the case, Gibson’s Bakery was a 5th generation family business in Oberlin, Ohio, near the Oberlin College campus. It served baked goods to the public and also to the student dining service, as well as operating a general convenience store. As with many other small businesses, student shoplifting was epidemic, as we covered, Student journalist: Shoplifting at Gibson’s Bakery was part of Oberlin College’s “Culture of Theft”A store clerk, a member of the Gibson family, caught an Oberlin black student shoplifting, a scuffle ensued that was joined by two other Oberlin black students. When the police arrived, they arrested the students who eventually pleaded guilty. But before that, the college officials and students accused the bakery of racial profiling, called a boycott, suspended Gibson’s business with the college, and organized protests outside the bakery.At the protests, a flyer was handed out, according to witnesses who testified at trial, by Dean of Students Meredith Raimondo, who also handed out stacks of flyers for others to distribute. The flyers accused the Gibsons of a long history of racial profiling, including in the incident with these shoplifters. The Gibsons disputed that allegation and that they did anything wrong in this incident, and requested a public apology from the college in order to repair the reputational damage, but the college refused. (To this day it never has apologized.)
Based on the actions of college officials in conveying and promoting the defamatory accusations, a lawsuit was filed, resulting in massive verdicts for the owners of the bakery, David Gibson and his father, Allyn Gibson. Legal Insurrection was the only national media outlet to have someone in the courtroom reporting, including when the verdicts came down:[Lee Plakas greets Allyn W. Gibson after punitive damages verdict][Photo credit Bob Perkoski for Legal Insurrection Foundation]
[David Gibson hugs grandson after punitive damages verdict][Photo credit Bob Perkoski for Legal Insurrection Foundation]
{¶1} Appellants, Oberlin College and its Dean of Students, Meredith Raimondo (collectively “Oberlin” or individually “the college” or “Raimondo”), appeal from a judgment of the Lorain County Court of Common Pleas that entered judgment against them and awarded compensatory and punitive damages to Gibson Brothers, Inc., Allyn W. Gibson, and David R. Gibson1 (collectively “the Gibsons”). The Gibsons cross-appealed the trial court’s reduction of damages that the jury had originally awarded them. This Court affirms.* * *{¶133} Oberlin’s assignments of error are overruled. The Gibsons’ sole assignment of error in their cross-appeal is overruled. The judgment of the Lorain County Court of Common Pleas is affirmed.
As satisfying as this must be to the Gibson family, it also must be bittersweet because the two lead plaintiffs and the patriarchs of the family did not live to see the appeals court verdict:
[David Gibson and Allyn W. Gibson at trial][Photo credit Bob Perkoski for Legal Insurrection Foundation]
But as David Gibson revealed when he announced his cancer diagnosis after the verdict, Oberlin College dragged out the case knowing David was terminally ill.
(if video does not load, click here)
Owen Rarric, co-counsel for the Gibsons, provided the following statement:
“The Gibson family appreciates the Court of Appeals’ thorough and thoughtful analysis which rightly rejected all of Oberlin College’s and Dean Raimondo’s challenges on appeal.”
I sent a request to the college seeking comment. If I receive a response, I will add it.
(added) Oberlin Director of Media Relations Scott Wargo provided the following statement on behalf of the college:
Oberlin is obviously disappointed that the appeals court affirmed the judgment in its ruling earlier today. We are reviewing the Court’s opinion carefully as we evaluate our options and determine next steps.In the meantime, we recognize that the issues raised by this case have been challenging, not only for the parties involved in the lawsuit, but for the entire Oberlin community. We remain committed to strengthening the partnership between the College, the City of Oberlin and its residents, and the downtown business community. We will continue in that important work while remaining focused on our core educational mission.
My understanding, which admittedly is limited, is that while there is an appeal avenue to the Ohio Supreme Court, it is discretionary whether the court accepts the case (much like the U.S. Supreme Court accepts only a small percentate of cases). The court only accepts civil “cases of public or great general interest.” Assuming that is the standard, this case would seem to fit, but the legal issues are not particularly novel or applicable to a large number of cases, and the case is very fact specific. So while the case has a lot of media attention, that does not mean it will be accepted. I would be shocked if the college does not at least try to get the Ohio Supreme Court to take it.
Here are some key excerpts from the Decision. First, the court rejected the deceptive attempt of Oberlin supported by the NAACP, and media entities and law professors to turn this into a free speech case. As I pointed out many times, the student protest had zero to do with case other than as a backdrop against which the college and its senior administrator defamed the Gibsons.
Oberlin’s legal strategy mirrored its public relations strategy, in which it dishonestly claimed it was held liable for student speech, In NPR interview, Oberlin College President repeats false claim it was “held liable for the speech of its students”.
The court saw through this diversion:
{¶3} This Court recognizes that this case has garnered significant local and national media attention. The primary focus of the media coverage, and the several amicus briefs filed in this case, has been on an individual’s First Amendment right to protest and voice opinions in opposition to events occurring around them locally, nationally, and globally. This Court must emphasize, however, that the sole focus of this appeal is on the separate conduct of Oberlin and Raimondo that allegedly caused damage to the Gibsons, not on the First Amendment rights of individuals to voice opinions or protest.{¶4} When this case went to trial, the student protests were not a subject of this defamation case, but merely provided a background for how other, potentially defamatory speech arose and was disseminated. Moreover, as will be explained in much greater detail in this opinion, prior to allowing the jury to consider whether any written statements were actionable, the statements were reviewed by the trial court (and will be again by this Court on appeal) under modern defamation law, which explicitly protects First Amendment free speech.* * *{¶25} Oberlin has asserted throughout this case, as have several organizations through amicus briefs on appeal, that any liability for defamation in this case could have a chilling effect on students’ rights to free speech at colleges and universities across the country. This Court must emphasize, however, that Oberlin was granted summary judgment on the Gibsons’ claims based on the verbal protests by Oberlin students. The trial court agreed that the student chants and verbal protests about the Gibsons being racists were protected by the First Amendment and, therefore, were not actionable in this case. By the time of trial, the Gibsons’ libel claim focused solely on whether Oberlin had disseminated false, written statements of fact that caused the Gibsons significant harm.
The court then turned to the alleged defamatory statements by the college and Raimondo, starting with the flyer handed out by Raimondo and at her direction (according to witnesses) by others, and a student Senate resolution displayed in a college glass case and not removed by college. The court found that each document made defamatory statements of face and were published by the college:
{¶28} The flyer was a two-sided page. The front page of the flyer began with a large font, bold-faced “DON’T BUY” printed inside a template of an eight-point star, and included other pleas that people boycott the bakery and shop elsewhere. The back page of the flyer listed other local retailers for the students to find specific items.
{¶30} The Senate Resolution was passed by the student senate on November 10, 2016. It urged students to cease all support of the bakery, and called upon the faculty and administration of the college to “condemn * * * the treatment of students of color by Gibson’s Food Market and Bakery[.]” Rather than quoting the resolution in its entirety, this Court will summarize and quote the most relevant portions at issue here. The resolution begins by acknowledging and condemning hatred and bigotry as well as all acts of violence. It then details “a few key facts” about the Gibsons’ incident because “we find it important to share” them with the Oberlin Community:
A Black student was chased and assaulted at Gibson’s after being accused of stealing. Several other students, attempting to prevent the assaulted student from receiving further injury, were arrested and held by the Oberlin Police Department. In the midst of all this, Gibson’s employees were never detained and were given preferential treatment by police officers. Gibson’s has a history of racial profiling and discriminatory treatment of students and residents alike. * * * .
{¶31} Oberlin has argued that the flyer and Senate Resolution contained only opinions, but it has focused its arguments throughout this case on statements alleging merely that the Gibsons {¶31} Oberlin has argued that the flyer and Senate Resolution contained only opinions, but it has focused its arguments throughout this case on statements alleging merely that the Gibsons were racists. Despite Oberlin’s arguments to the contrary, the potentially libelous statements in this case include much more than calling the Gibsons “racists.”
{¶32} The trial court determined, as a matter of law, that both the flyer and the Senate Resolution were not statements of constitutionally protected opinion but were defamatory per se. The trial court focused on the statements about the Gibsons and their bakery having a history of racial profiling and discrimination toward students and residents and the statements about an “assault[]” of a student by an owner or owners of the bakery.
* * *
{¶37} Given the public’s lack of knowledge of what had happened at the bakery and the ongoing tension on campus about racial injustice, these statements would convey to a reasonable reader that the arrest and alleged assault at the bakery were racially motivated, that the Gibsons had a verifiable history of racially profiling shoplifters on that basis for years, and that those facts were a reason to boycott the bakery. The trial court did not err in concluding, as a matter of law, that these were actionable statements of fact, not constitutionally protected opinion. Consequently, it did not err in denying Oberlin’s motion for JNOV on this basis.
* * *
{¶49} Construing the totality of this evidence in favor of the Gibsons, a reasonable person could conclude that Oberlin took actions to directly publish and/or assist in publishing the flyer. Therefore, the trial court properly denied JNOV as to the publication of the flyer.
* * *
{¶52} This evidence about Oberlin affirmatively providing the student senate with various types of outward assistance could support a jury conclusion that Oberlin facilitated the initial publication of the Senate Resolution. But for Oberlin providing the student senate with the means and authority to create and send the Senate Resolution to the entire student body via email and post it in a prominent display case in the student union to be seen by current and potential students, the Senate Resolution could not have been published in the manner it was in this case. See Cooke, 2003-Ohio-3118, at ¶ 25 (affirmative acts of aiding and abetting are sufficient to establish publication).
{¶53} The Gibsons also argued throughout the trial that Raimondo or the college should have stopped the publication of the Senate Resolution by removing the resolution from the display case, sending a message to the student body, and/or otherwise calling upon the student senate to retract and/or correct their defamatory statements. Oberlin responded throughout these proceedings that it had no obligation to remove the resolution from the display case or to take corrective actions regarding it.
{¶54} Oberlin cited no legal authority to support that argument, however, nor did it present evidence at trial that it lacked the ability to take corrective actions. On the other hand, there is authority to support the Gibsons’ position on this issue. In addressing similar issues, the Tenth District determined that a defendant could be held liable for not removing defamatory signs posted on her property.
The court went on to uphold the jury findings in Tortious Interference with the bakery’s contract with the indepenent food service company as well as Intentional Infliction of Emotional Distress.
The court also ruled in favor of the Gibson’s on one of the thorniest issues in the case. Oberlin College executed its right to bifurcate the trial between compensatory and punitive damages, so no punitive damage evidence could be presented until after the compensatory verdict. During the compensatory phase, the jury found that Oberlin had not acted with “actual malice,” but that did not affect the jury verdict because the Gibsons were private figures and only needed to prove negligence. But on the punitive phase — after more evidence was presented — the jury found actual malice. The college claimed that was error to give the jury a second bite, but that obviously made no sense because it was the bifurcation at the college’s request that prevented the Gibsons from presenting all their evidence of actual malice in the compensatory phase. The Court agreed:
{¶87} On the other hand, if Oberlin had not requested bifurcation, the Gibsons could have put on their entire case at the liability stage of the trial with evidence presented of both compensatory and punitive damages. Without Oberlin’s request for bifurcation, the jury would not have had to look at actual malice for liability and then again for punitive damages.{¶88} Because Oberlin did request bifurcation, however, after compensatory damages were awarded by the jury, the Gibsons were entitled to proceed to the second stage of trial and put on any evidence they had pertaining to punitive damages for each of their claims: defamation, intentional infliction of emotional distress, and tortious interference with business relationship. The Gibsons cannot be punished for Oberlin’s choice to bifurcate.
The rest of the decision addresses the college’s claim that damages were excessive, and the Gibson’s claim that the punitive damage caps which resulted in a reduction of the verdict were unconstitutional.
(This post has been updated repeatedly.)
[Featured Image: Gibson Family and legal team after punitive damages verdict][Photo credit Bob Perkoski for Legal Insurrection Foundation]
CLICK HERE FOR FULL VERSION OF THIS STORY
