(or a few other things, as Oberlin College discovered…)

As we have noted here numerous times, the First Amendment provides U.S. citizens with the right to free speech, not consequence-free speech. A recent appeals court decision in Ohio made that clear when it upheld a multi-million-dollar verdict against Oberlin College:

A private college in northern Ohio has lost its appeal after a lengthy court battle with the owners of a local bakery who accused the administration of perpetuating false allegations of racism against their business.

Now the college could be on the hook for $31 million.

A three-judge panel in Ohio’s 9th District Court of Appeals rejected Oberlin College’s arguments in a 50-page opinion published on Thursday, March 31. In doing so, the appeals court upheld a lower court decision that awarded Gibson’s Bakery $25 million in damages and $6 million in legal fees, the Associated Press reported.

This decision dates back to a 2016 incident in which a bakery employee accused three Black students from Oberlin of attempting to shoplift and use a fake ID. The students later pleaded guilty to various charges related to the incident, but before that, members of the college community protested what they felt to be racist and unfair treatment of the students.

During the protest, the school’s dean of students handed out a flyer that stated, in part: “This is a RACIST establishment with a LONG ACCOUNT of RACIAL PROFILING and DISCRIMINATION.” In addition, the student government at Oberlin passed a resolution stating:

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.

Oberlin argued that the protest and statements made at it were part of a free-speech exercise and thus protected by the First Amendment. The courts ruled that the students could protest all they wanted, but that’s not the point of the suit. This is where it might be helpful to break down what the First Amendment does and doesn’t do:

It does:

• Prevent government interference that limits speech. In other words, had the protest been shut down by the cops or the city council, or prohibited from occurring in the first place, the First Amendment rights of the students would have been violated.
• Allow people to express opinions without fear of governmental retaliation. Simply put, if I want to tell people I dislike the president, or that the food at a restaurant doesn’t thrill me, I have that right.

It does NOT:

• Protect all forms of speech, including false, defamatory content. The courts have to decide, as they did in this case, to what degree something is stated as a fact or an opinion. “This weather sucks,” is a statement opinion. “The weather forecaster on Channel 3 is a pedophile,” is meant as a statement of fact, and carries with it potentially defamatory content, if untrue.
• Protect people from consequences from their free-speech activities. If you engage in free speech, you can say whatever you want, but you are held to account for that speech. This is where defamation suits come into play. It’s also why I’m a raving psychotic about fact-checking and attributions in stories.

Oberlin argued the protest, flyer and resolution were opinions, thus protected by the First Amendment. What the court in this case found was that the flyer and the student government resolution were presented in a way that a reasonable person could construe them as being factual. That includes the allegations that an employee assaulted a kid, that the situation was racially motivated and that the bakery had a history of racial profiling/racism. If the school wants to win the case, it has to demonstrate fact-based proof that this stuff has happened.

Although the court didn’t cite the Ollman Test in this case, it still serves as a benchmark for how to determine if something is fact or opinion. Two of the four standards are pretty important here:

Can the statement be proven true or false?

In order for a libel suit to be successful, the plaintiff must demonstrate the material in question is false. If the material is pure opinion, it cannot be proven true or false and thus cannot be libelous. In this case, claims of assault, racism and a history of racial profiling all could be proven or disproved at some level. Oberlin didn’t make any real effort to try to make the case the content was true, the courts found.

What is the common meaning of the words?

Assault, racism and racial profiling all have definitions that could be determined and applied. We do have degrees of assault, but what do people think of when they hear someone was “assaulted?” Probably physical violence that leaves injuries. What about “racism?” That is clearly more wide-ranging and based on a variety of factors, but in holding to the “reasonable person” standard, the court has to make a call. Is failing to say “hello” to an unknown person of another race a reasonable standard? Probably not. Is burning a cross at the home of a person of color going to fit the bill? Heck yeah and then some. Thus, somewhere in the middle of that range is where reasonability is going to come to play and that’s where the court gets to say if the accusations fit the meaning.

In short, the school put itself in jeopardy by failing to fact-check a situation and not considering the ramifications of failing to do so.  The school says it might appeal, but I’d probably put my money on this case being upheld.

That’s just my opinion, based on the facts.