Late last week, an Ohio jury reached a verdict that sent shockwaves through the American higher-education establishment. It ordered Oberlin College to pay a business called Gibson’s Food Market and Bakery a stunning $11 million in compensatory damages for defamation, intentional infliction of emotional distress, and intentional interference with business relationships. And that number will rise, significantly, if it decides to impose punitive damages as well.
The case represents an important moment — the moment when the American legal establishment learned that it can potentially impose steep costs on institutions that participate in the kind of cruel, malicious, and vicious mob tactics that have become an all-too-familiar part of the American political landscape. It turns out that the law can indeed offer an answer to the worst forms of illiberal behavior.
The facts of the case are egregious. On November 9, 2016, a bakery employee suspected an African-American Oberlin student, Jonathan Aladin, of stealing wine. The employee pursued the student and got in a physical altercation with Aladin and two other Oberlin students, Cecilia Whettstone and Endia Lawrence. Police arrested the three students, and almost a year later — on August 11, 2017 — Aladin pled guilty to attempted theft, aggravated trespass, and underage consumption. Whettstone and Lawrence pled guilty to attempted theft and aggravated trespass. They were not racially profiled. They were guilty of crimes.
Yet students immediately organized a protest of the bakery, publishing and distributing flyers that claimed it was “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. Evidence indicated that university officials helped publish and distribute the flyer, including by disseminating it to media.
This was but the beginning of the bakery’s ordeal. The student senate issued a resolution stating that Gibson’s had a history of “racial profiling” and “discriminatory treatment,” and the resolution was posted on campus for “a period of at least one year.” The head of Oberlin’s Department of Africana Studies published a Facebook post declaring that Gibson’s had “been bad for decades” and that “their dislike for black people is palpable.” He said, “Their food is rotten and they profile black students.”
Then, from November 14, 2016, through January 30, 2017, the college suspended all business with Gibson’s.
In sum, evidence indicated that the university assisted in the dissemination of false statements of fact about private citizens and engaged in economic reprisals based on these false accounts. The accusation of assault alone was libelous under Ohio law.
Responding in the New York Times, renowned First Amendment lawyer Floyd Abrams said the jury’s verdict was a threat to free speech, arguing that “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.” But this is a mischaracterization of the case. University officials helped spread false claims. University officials took punitive actions against the bakery.
Moreover, common-law torts such as defamation, intentional infliction of emotional distress, and intentional interference with business relationships have long existed side-by-side with the First Amendment. So have other causes of action, such as invasion of privacy and breach of contract, which — taken together — have left America’s private citizens with considerable protections against efforts to destroy their lives, end their business relationships, and expose them to humiliation.
And as if on cue, the counterattack continues. Late last week, Jordanian-American writer Natasha Tynes filed a multi-million-dollar lawsuit against her publisher after it publicly condemned her, accusing her of “policing” black women’s bodies and jeopardizing the safety of a black woman, and canceled publication of her book. Tynes’s crime was tweeting a picture of an unidentified black D.C. Metro official breaking Metro rules by eating on the train. Faced with the usual online shame mob, she apologized and deleted the tweet within an hour, but the damage was done. She’d lost her book deal and been subjected to an avalanche of hate and threats that led to her hospitalization. Eventually, to escape from the mob, she fled the country for a time.
Tynes’s complaint details numerous grounds for alleging a rather egregious breach of contract, along with a series of malicious and bad-faith acts that may — depending on the evidence — constitute intentional torts.
The First Amendment rightly provides speakers — even the most hostile and malicious speakers — with a considerable amount of protection from legal punishment. But that protection has always had limits, and those limits are rightly stronger when the target of the attack isn’t a public figure such as a celebrity, politician, or journalist. Given the extent to which online mob behavior so often depends upon a combination of malicious falsehoods and attempted economic reprisals, many incidents immediately implicate the common law.
It’s tempting, given the technological revolution that’s upended American culture, to believe that old legal doctrines and traditions aren’t up to the new challenges of our time. But lies are still lies, contracts are still contracts, and the law of libel applies just as much to a Facebook post or a tweet as it does to a printed flyer. An illiberal virus has entered the American system. It was only a matter of time before the liberal antibodies began to emerge. And thanks to the brave proprietors of Gibson’s Food Market and Bakery, victims of hate and malice now know that they have the tools to fight back.