Free speech groups, legal scholars side with Oberlin College in Gibson suit appeal

More free speech groups and a group of First Amendment scholars have signed on in support of Oberlin College in a yearslong legal battle over whether it libeled and defamed the Gibson family and Gibson's Bakery in Oberlin. The National Coalition Against Censorship, the Bechner Center for Freedom of Information, Defending Rights & Dissent, and DKT Liberty Project have sided with the college, which following a monthlong trial last spring was found liable for a $30 million-plus judgment in favor of the Gibsons. "The First Amendment protects Oberlin College and its students' expressions on a matter of public concern and its protections weigh heavily against the imposition of liability under these circumstances," the organizations argued in their amicus brief filed with the 9th District Court of Appeals in Akron. "Amicus curiae" is a Latin term meaning "friend of the court," and a legal practice allowing individuals with a stake in the outcome of a case to file briefs in support of legal arguments in the matter. In this case, the filings were made as part of Oberlin College appealing the jury's award. Holding the college liable for the protected speech of its students "is antithetical to free expression guarantees and Ohio law," the organizations argued in their brief, submitted by Columbus attorney Kevin T. Shook and Seattle attorneys Bruce E.H. Johnson and Caesar Kalinowski IV. "Consistent with its progressive values, Oberlin's faculty and students have always championed education for black Americans and invited free speech on matters like slavery, civil rights, and equality for all. While many disagree with the substance and manner of how the students chose to express their sincerely held opinions, the First Amendment does not permit the government to enforce content-based restrictions on others opinion," they wrote. "Because (Lorain County Common Pleas Court Judge John Miraldi) disregard this historical context and its impact under the First Amendment, this Court should vacate the judgment below." The college also is not liable for protected expression like that of the students, and to hold the college accountable would be to "chill" free speech in academic settings and create more liability, they argued. The attorneys also called "any judgment that purports to answer whether Gibson's store is" racist and has a long history of racial profiling and discrimination both "futile and facile." Oberlin College did not put any witnesses on the stand during the trial last spring to testify to personal experience of racism in the bakery or by the Gibson family. The Gibsons put numerous witnesses on the stand, many of them people of color, who testified they had never experienced racism by the Gibsons or when working or patronizing the store. Also siding with Oberlin College in an amicus brief were 29 First Amendment scholars from across the nation. The list of scholars includes former ACLU president Nadine Strossen, Ohio State University professor David Goldberger, Floyd Abrams, David Ardia, Vincent Blasi, Clay Calvert, Erwin Chemerinsky, Dale Cohen, Lucy Dalglish, Eric Freedman, Susan Gilles, Gautam Hans, RonNell Andersen Jones, Jane Kirtley, Daniel Kobil, Ronald Krotoszynski Jr., Gregg Leslie, Lyrissa Lidsky, Brian Murchison, Leonard Niehoff, Mary-Rose Papandrea, Jonathan Peters, Steven Shiffrin, Paul M. Smith, Geoffrey Stone, E. Thomas Sullivan, Stephen Wermiel, Sonja West and Kyu Ho Youm. In a brief written by Niehoff and attorney Mary Hyde of the law firm of Honigman LLP in Ann Arbor, Michigan, the scholars argue that Judge Miraldi made three errors at trial: He gave the jury incorrect instruction on "aiding and abetting" the publication of defamatory speech by Oberlin College students who protested the bakery in November 2016 the Supreme Court has not included in its "decadeslong process" of analyzing defamation claims under the First Amendment the "aiding and abetting" instruction "raises serious constitutional problems" including the possibility that a jury could find someone liable for defamation "who did nothing more than give a 'thumbs up' in response to a statement or tell other members of an audience to 'be quiet' so the speaker could be heard. "If this is what the instruction means, then it leads to absurd results and it is unconstitutionally overbroad in its reach," the scholars concluded. "If this is not what the instruction means, then it is unclear what it does mean — and under those circumstances the instruction is unconstitutionally vague." (italics are those of the brief's authors) Student statements against the Gibsons calling their establishment racist could not be objectively proven true or false, the scholars argued. Miraldi also mistakenly allowed jurors to consider punitive damages against Oberlin College because "actual malice" — hatred or ill-will on behalf of the college or its administrators against the Gibsons — was not proven, they alleged. The briefs are in addition to a brief filed June 8 by a group of 22 media organizations, publishers and professional associations in support of Oberlin College and free speech. Attorneys for the Gibsons have denied throughout the case that the issue is one of free speech, and that "actual malice" existed, citing the behavior of Oberlin College administrators during and after the protests of November 2016. Contact Dave O'Brien at (440) 329-7129 or dobrien@chroniclet.com. Follow him at @daveobrienCT on Twitter.