By David French
Friday, June 14, 2019
Yesterday, the jury in the Oberlin College defamation
trial delivered the school a staggering blow — awarding the plaintiffs $33
million in punitive damages after last week handing down an $11 million verdict
for the college’s role in a defamatory campaign against a small Ohio bakery.
The total damage award is so large that it may exceed state-law limits. But
make no mistake, even if the award is reduced to, say, a “mere” $25 million,
this case is profoundly important.
In a piece earlier this week, I focused on the legal
importance of the case. The plaintiffs lawyers used longstanding common-law
causes of action to attack Oberlin, causes of action that have long existed
alongside the First Amendment and provide protection for the economic
relationships and public reputation of (especially) private citizens. Given the
prevalence of malice and falsehood in modern outrage mobs, the culture was ripe
for a case like the Oberlin trial, and the plaintiff’s attorneys have drawn the
blueprints for copycat litigation.
But let’s turn for a moment from the legal import of the
case to its practical applicability. In short, the more I think about the case,
the more important I think it is. Here’s why:
First, while the facts of the case were egregious, they
were not unique. In the Oberlin case, students accused the plaintiffs — owners
of Gibson’s Food Market and Bakery — of racism and racial profiling after
police arrested three students for attempting to steal wine and then physically
attacking an employee who tried to stop the theft. The students later pled
guilty to multiple criminal counts.
Students immediately launched protests of the bakery and
created and disseminated flyers declaring the bakery “a RACIST establishment
with a LONG ACCOUNT of RACIAL PROFILING and DISCRIMINATION,” and that a member
of the Oberlin community “was assaulted” by its owner. These claims were false.
The evidence at trial showed that employees and administrators helped publish
and distribute the false flyer, including by disseminating it to the media. The
college also suspended its business relationship with the bakery.
Anyone who’s spent any time dealing with campus
controversies knows that activist administrators often help, support, and even
direct the activities of radical students. Some administrators seem to view
campus activism as part of the educational process itself, a rite of passage
that helps prepare them for a lifetime of political engagement. In my
litigation days, I’ve seen multiple instances where administrators help
activists formulate messages, plan protests, and provide university resources
to favored activists.
When activists are engaged in constitutionally protected
speech, there is absolutely no legal problem with this kind of university
engagement. When, however, student activists are spreading outright lies and
violating the law, university engagement becomes extraordinarily risky.
Second, the size of the jury award will create a legal
market for litigation. There’s a relatively simple reason why campus
free-speech codes proliferated well before there was a concerted legal
counterattack — money. It takes money to sue universities, and First Amendment
cases simply don’t yield eye-popping jury awards. It took the creation of large
networks of nonprofit, pro-bono lawyers to turn the free-speech tide on campus.
Common-law torts are different. Plaintiffs can receive
real compensation, and universities have deep pockets. In a radio interview
yesterday, I compared the verdict to the kind of sound that causes prairie dogs
to stand alert — suddenly, lawyers are paying attention.
It is true that vexatious defamation suits can be used to
punish lawful speakers, but many states have erected statutory guardrails to
protect defendants against frivolous litigation. In addition, the First
Amendment properly provides extremely robust protection for speech directed at
public figures such as politicians, celebrities, and journalists. The fact
remains, however, that outrage campaigns are often built on lies, and that when
adults irresponsibly or maliciously spread those lies, the law has long
provided a remedy.
Critics are already decrying the “chilling effect” of the
Oberlin verdict. To the extent that the verdict causes activist administrators
to pause and consider the underlying veracity and merit of the public campaigns
they’re asked to join, then this is one chilling effect that may well do some
good.
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