On May 13, 2022, Oberlin College and Meredith Raimondo filed an appeal in the Ohio Supreme Court, after losing their appeal from the massive trial verdicts. We covered the trial court verdict and appeal decision in Appeals Court Upholds Gibson’s Bakery Massive Verdict Against Oberlin College.
You can view the filings at the Ohio Supreme Court’s Case Docket page, including the Notice of Appeal:
Appellants Oberlin College and Meredith Raimondo hereby give notice of appeal to the Supreme Court of Ohio from the judgment of the Lorain County Court of Appeals, Ninth Appellate District, journalized in Court of Appeals Case Nos. 19CA011563 and 20CA011632 on March 31, 2022.This case raises substantial constitutional questions and is one of public and great general interest.
This case is considered a Jurisdicational Appeal under Ohio Sup. Ct. Rule of Practice 5.02(A):
As used in these rules, a “jurisdictional appeal” is an appeal from a decision of a court of appeals that asserts one or more of the following:(1) The case involves a substantial constitutional question, including an appeal from the decision of a court of appeals under App.R. 26(B) in a noncapital case, pursuant to Article IV, Section 2(B)(2)(a)(ii) of the Ohio Constitution;(2) The case involves a felony pursuant to Article IV, Section 2(B)(2)(b) of the Ohio Constitution;(3) The case involves a question of public or great general interest pursuant to Article IV, Section 2(B)(2)(e) of the Ohio Constitution.
Whether the Ohio Supreme Court decides to hear the case is discretionary under the factors listed above. Historically the court has agreed to hear only about 10% of the Jurisdictional Appeals filed.
Since Oberlin College does not have a right to have the Ohio Supreme Court hear the case, it filed a Memorandum In Support of Jurisdiction. It appears that under the Ohio Sup. Ct. Rules of Practice the Gibsons have 10 days to file a cross-notice of appeal if the Gibsons take an appeal to restore their full punitive award, and 30 days to file a response to Oberlin College’s Memorandum In Support of Jurisdiction as well as in support of the Gibsons cross-appeal, if any.
Of all the documents I’ve seen in this case, Oberlin College’s Memorandum In Support of Jurisdiction may be the most tendentious, bordering on mendacious.
The Statement of the Case section (at p. 5), asserts facts outside the trial record, particularly what appear to be characterizations of private Facebook records of the store clerk that were the subject of separate litigation, what are called in the Memorandum “incidents in the summary judgment record.” What the papers do not tell the Supreme Court is that those records were not offered at trial and do not form any part of the trial record. This is grossly improper, you can’t expand the record on appeal, particularly not at this level of appeal, and if you are going to do that, tell the court what you are doing.
This is no small matter in Oberlin College’s filing. Oberlin College is trying to convince that Supreme Court that this is an important constitutional case, and key to that is the Gibsons being at least special purpose public figures. The Gibsons supposedly being involved in controversies as set forth on page 5 of the Oberlin College filing are key to the argument Oberlin College is making on this point.
The trial court as affirmed by the appeals court, found the Gibsons were private parties. That matters a great deal to the standard of proof for defamation, and particularly the issue of actual malice. The facts outside the trial record brought up by Oberlin College go directly to the standard by which the Supreme Court will decide whether to take the case, without telling the court that the facts and records, while part of the summary judgment record, were not even offered at trial. This outside-the-trial record evidence in the filing in and of itself should be ground for the Ohio Supreme Court not to take the case.
At first read the legal arguments also are more of the same mischaracterizations Oberlin College has been making since the start of the case, including that it was held liable for the opinions of students and this is a First Amendment case about campus speech. The appeals court dispatched with that argument as follows, in part:
{¶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.
Oberlin College also asserts that the Gibsons were given two bites at the “actual malice” apple, which in the compensatory phase the jury found in the negative but in the punitive phase found in the affirmative. This is a specious argument because Oberlin College demanded a bifurcated trial, and not all evidence was presented during the compensatory phase. As the appeals court found:
{¶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.
Other questionable representations jump out at me, such as the lead point of law argued that the trial and appeals court drew an arbitrary and unlawful line between verbal and written statements (emphasis added):
Proposition of Law No. 1:The constitutional protection of opinion speech applies equally to oral and written statements during protests, regardless of the tort theory. A viewpoint or interpretation of events that is protected when spoken is also protected when expressed in writing.
The explanation for this point of law is highlighted on page 1 of the Memorandum (emphasis added):
The Ninth District severed students’ right to protest orally from written protest materials, insisting its decision would not chill speech because oral chants were protected and Oberlin’s conduct was separate. Can a line be drawn between oral and written speech that protects only the former when the context is the same? Even if it can, can colleges be held responsible for facilitating this speech consistent with the First Amendment?***First, the Ninth District’s novel line between oral and written protest speech is a substantial constitutional question meriting review. App. Op. ¶¶ 3-4, 25-26, Appx. 2, 10-11. The panel fails to justify this line, and it reflects at least two analytical errors that belie the assurance that the panel’s decision will not affect the “rights of individuals to voice opinions or protest.” ….
This mixes two different concepts. We covered the trial court’s summary judgment decision, which dismissed verbal slander claims that were not the same as the false factual assertions in the flyer distributed by Raimondo. Here’s what the trial court found, in part, regarding the flyer allowing it to go to trial (emphasis added):
…. Here, it is undisputed that Meredith Raimondo presented at least one individual, Jason Hawk, with a copy of the protest flyer. The remaining evidence surrounding the distribution of the flyer, and the explanations for doing so, are in dispute. But Plaintiffs have presented testimony from individuals who say they observed Raimondo and other Oberlin College employees handing out flyers at the protest. Further, Plaintiffs offered evidence that Defendants permitted the protesters to make copies of the flyer on the Oberlin College Conservatory’s Office’s copy machine during the protests and provided protesters with refreshments and gloves for use during the protests….* * *… Here, the accusation that Gibson’s has a “long account of racial profiling and discrimination” goes beyond implication and directly tells the reasonable reader that the author’s previous statement that “[Gibson’s] is a racist establishment” is supported by a lengthy and potentially documented record of racial profiling and discrimination. To the average reader, the statement of a LONG ACCOUNT OF RACIAL PROFILING AND DISCRIMINATION suggests that the publisher has knowledge of a documented past history of such activity. The “LONG ACCOUNT” language implies to the reasonable reader that the publisher’s statement is based on defamatory facts that have not been disclosed. See Id. at 251-52. The implication of the undisclosed facts supporting the statements of the flyer make them as damaging as an assertion of fact. See Scott, at 251-52. A letter from the Defendants also supports verifiability. On November 11, 2016, and in response to the events at Gibson’s Bakery on November 9, 2016, Marvin Krislov, then President of Oberlin College and Meredith Raimondo, Dean of Students, issued a joint statement. In the context of the alleged racially charged incident, they said: “We will commit every resource to determining the full and true narrative, including exploring whether this is a pattern and not an isolated incident.” The Defendants indicate a willingness to “commit every resource” to determine “if this [racial discrimination] by the plaintiffs is “a pattern and not an isolated incident.” The Defendants’ willingness to commit resources is probative of their belief that a pattern of racial discrimination by the Plaintiffs is in fact verifiable. In this Court’s view, a “pattern of racial discrimination” and “a long account of racial discrimination” are synonymous and plausibly verifiable….Based on a totality of the circumstances and construing the evidence in the light most favorable to Plaintiffs, the non-moving party, it is this Court’s view that the statements made in the flyer are not constitutionally protected opinion.
Here’s what the trial court said, in part, about the verbal chants (emphasis added)
B. Count Two: SlanderPlaintiffs slander claim is based on chants of “[expletive] the Gibsons” and “Gibson’s is racist” directed at Plaintiffs and their employees during the protests, and statements allegedly made about Plaintiffs by Oberlin College Tour Guides during new student tours. Because the chants are protected opinions and the hearsay evidence relating to the alleged tour guide statements is too tenuous to sustain a claim for slander, Defendants are entitled to judgment as a matter of law as to Count 2 of Plaintiffs’ Complaint.1. The Protest Chants are OpinionsThe protest chants directed at Plaintiffs included statements like “[expletive] the Gibsons” and “Gibson’s is racist.” Applying the Scott factors and considering the totality of the circumstances, the chants are protected opinions. The content is pejorative and weighs in favor of actionable defamation. Verifiability weighs in favor of finding the statements are opinions. The key distinction between the statements in the flyer and the resolution is that the former contained implications of additional information or factual support for the statements. Here, there is no such implication tending to make the statements sound more verifiable. Likewise, the context and tone of the chants are more likely to be perceived by the average listener to be expressions of opinion. Even when weighing the above evidence in Plaintiffs’ favor, there are no issues of fact regarding whether the protest chants are protected opinions.2. The Alleged Statements of Tour Guides are Insufficient to maintain a claim for slanderPlaintiffs likewise cannot rely on the alleged statements of unidentified tour guides as evidence of its defamation claims against Defendants. The hearsay evidence surrounding these statements is insufficient, and the attempt to tie these statements to Defendants is too tenuous. Even if there were additional details or evidence related to these statements, they are likely protected opinions for the same reasons that the protest chants and Facebook post are protected opinions….
So rather than creating some constitutional line in the sand that requires the Ohio Supreme Court to take the case, the trial court (and appeals court) applied the law to two different sets of statements which were not identical, only one of which (the flyer) contained statements of fact that were allowed to go to the jury.
I’ve only had a couple of hours so far to go through the filing, and already I found major problems. I’m going to continue going through Oberlin College’s filings, and of course, will post the Gibsons’ papers when filed.
The NAACP has filed in support of the college, as it did in the appeals court. The NAACP Memorandum In Support Of Jurisdiction was not on the electronic docket when I wrote this post last night, but now appears as having been filed on May 13. A delay in something showing up on the electronic docket is not unusual. The Memorandum adds nothing substantive, and obviously is done to get the court’s attention that this is an important case politically, even though that is not the standard. In any event, it’s hard to imagine the Justices are not aware of the case from the media.
Additional:
Several more amicus filings in support of the court taking the case were filed today. This is similar to in the appeal court where numerous groups were against the Gibsons on the merits:
Reporters Committee Amicus In Support of Jurisdiction
Ohio Association of Civil Trial Lawyers Amicus In Support of Jurisdiction
National Coalition Against Censorship Amicus In Support of Jurisdiction
Ohio Chamber of Commerce Amicus In Support of Jurisdiction
[Featured Image: The late David Gibson and Allyn W. Gibson at trial – Photo credit Bob Perkoski for Legal Insurrection Foundation]
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