Thursday, November 9, 2023

Ohio Court finds College legally liable for supporting libelous statements made by student protestors (Michael Simkovic)

In Gibson Bros. v. Oberlin Coll., 2022-Ohio-1079, ¶ 24, 187 N.E.3d 629, 642, appeal not allowed, 2022-Ohio-2953, ¶ 24, 167 Ohio St. 3d 1497, 193 N.E.3d 575, the Ohio Court of Appeals affirmed a decision by a trial court that granted roughly $30 million in damages and attorney’s fees to a bakery that sued Oberlin College.

This case raises serious concerns for colleges and universities that take an active role in supporting student protests on campus. It suggests that statements made or actions taken by student groups could legally be attributed to a college or university under certain circumstances.  This could prove very financially costly for universities.

In the Oberlin case, one or more college employees attended protests and allegedly helped distribute flyers containing defamatory statements and allegedly helped obtain media coverage for those statements.  The decision did not, however, turn on this.  The court emphasized that college email lists were used to distribute defamatory statements about the target of a protest and that college buildings were used to display flyers containing defamatory statements, and that college officials had the power to stop this from happening. 

The college also encouraged a boycott of a targeted business, which increased the damages awarded to plaintiffs.  The college was aware of student harassment directed at the target of the protests and did nothing to stop it.

Many of the facts cited by the court in attributing liability to the college are going to be true of the relationship between many colleges or universities and student protest groups.  The court noted that the college gave the student groups office space, funding, provided food at protests, gave them facilities to make copies of flyers, helped them get media attention, and let them post statements using college email lists and post physical paper messaging on or inside of college buildings.  However, there are also some egregious facts in the Oberlin case, including text messages by college employees, quoted below.

Concerns about university liability for actions by student protestors have increased recently as some professors (see here, here and here) and Hedge Fund Manager Bill Ackman have raised concerns that universities are failing to protect Jewish students from harassment by anti-Israel protestors, or in some cases may be tacitly encouraging such harassment. Mr. Ackman has strategically used litigation in his career as an activist investor and has ample resources with which to fund litigation against universities.  His open letter to Harvard may be a precursor to a lawsuit.

The lawsuit against Oberlin stemmed from an incident in which three Oberlin students were arrested for shoplifting alcohol from a local bakery and were subsequently convicted.  The students convicted of shoplifting were African American.

Student protest groups accused the bakery of engaging in a history and pattern of racial discrimination.  According to the court’s opinion, protestors also falsely claimed that the owner of the bakery choked one of the shoplifters.  An employee of the bakery helped the Ohio police apprehend one of the shoplifters.  The owner was not involved in the incident.

Protestors distributed flyers containing statements that were subsequently held to be defamatory, and passed a Student Senate resolution containing similarly defamatory statements, condemning the bakery, and urging a boycott.  College administrators and employees attended protests against the bakery, and allegedly helped distribute a flyer containing defamatory statements about the bakery to journalists and passers-by. 

The Student Senate resolution condemning the bakery was distributed to the entire student body using a college-provided email list.  A printout of the resolution was prominently displayed in a glass case in a college building.  The college allegedly helped make copies of the flyer and provided office space, food, clothing, and other resources to the protestors.

College administrators then pressured college vendors to drop the bakery as a supplier.

The owners of the bakery met with college administrators to ask them to explain to students that the bakery had been falsely accused and to allow its vendors to resume ordering from the bakery, but the college refused to do so, afraid that it would be targeted by the protestors.

One college administrator sent a text message to another saying of one of the bakery owners, “F-him. I'd say unleash the students if I wasn't convinced this needs to be put behind us.”  The bakery owners suffered harassment and vandalism of their property for months on end and then sued the college.

The college raised a first amendment defense.  The trial court found that the protest flyer and the student senate resolution were both defamatory.

The court held as follows:

“The Senate Resolution was written and published by an organization that was sanctioned by the college to govern its student body. The jury heard evidence that Oberlin assisted the student senate in its activities by providing it with financial support; a faculty advisor … an office in the student center; and a nearby glass display case within which it could post announcements.

More significantly, the college also provided the student senate with the authority to meet and pass resolutions, distribute them to the entire student body via a mass email, and display their resolutions in the glass display case in the student center. Also, the evidence at trial was undisputed that the evening that the student senate passed the resolution, the senate sent a copy of the resolution to … its advisor, and then-president [of the college]. …

… But for Oberlin providing the student senate with the means and authority to create and send the Senate Resolution to the entire student body via email and post it in a prominent display case in the student union to be seen by current and potential students, the Senate Resolution could not have been published in the manner it was in this case. ….

A reasonable juror could also infer from that evidence that … the faculty advisor, had the authority and/or obligation to instruct the student senate to remove the resolution many months earlier….

The [bakery owners] did not voluntarily inject themselves into a shoplifting incident at their bakery, nor did they voluntarily inject themselves into extreme public criticism of their employee's efforts to apprehend and detain the shoplifter. …

In meetings between the [bakery owners] and administration, Oberlin expressed a greater concern about appeasing its students… One text message sent by the interim assistant dean expressed that the criminal conviction of the three students was “an egregious process” and that she hoped the college would “rain fire and brimstone” on the bakery….

[At trial the bakery owners] presented the testimony of numerous witnesses who knew them either as employees of the bakery, friends, or community members. Those witnesses testified about their own experiences with the [owners] and the bakery and explained that they had never witnessed any incidents of racism or racial profiling.

Oberlin, on the other hand, did not call witnesses to testify about their personal experiences with the [bakery owners]. Instead, the defendants sought to have Oberlin administrators testify about “what Oberlin heard” about the [the owners] from community members…. Oberlin does not argue that these statements were not hearsay…

UPDATE, Nov. 9, 2:26pm:  Harvard has issued a statement announcing a plan to combat antisemitism on campus.  The letter discusses Harvard's views on free speech as it relates to these efforts as follows:

"I have heard concerns from some about how this important work relating to antisemitism will bear on Harvard’s vital commitment to free expression. Combating antisemitism and fostering free expression are mutually consistent goals....At the same time, our community must understand that phrases such as “from the river to the sea” bear specific historical meanings that to a great many people imply the eradication of Jews from Israel and engender both pain and existential fears within our Jewish community. I condemn this phrase and any similarly hurtful phrases.

Harvard was founded to advance human dignity through education. We inherited a faith in reason to overcome ignorance, in truth to surmount hate. Antisemitism is destructive to our mission. We will not solve every disagreement, bridge every divide, heal every wound. But if we shrink from this struggle, we betray our ideals."

UPDATE: Nov. 11. On Friday, Columbia University suspended two anti-Israel protest groups, "Students for Justice in Palestine" and "Jewish Voice for Peace."  These organizations will lose their affiliation with the university and all funding and will not be able to hold events on campus.  The groups were suspended for "threatening rhetoric and intimidation." 

The decision follows a letter issued by the U.S. Department of Education Office of Civil Rights on November 7 reminding colleges and universities of their legal obligations to prevent harassment on campus. 

According to a story in Reason and the Columbia Spectator, at least one protestor screamed antisemitic and anti-Black statements, including "Death to Jews" and obscenities, and attempted to instigate fights with numerous students.  According to Fox, "The Columbia chapter of Students for Justice in Palestine celebrated the Hamas terrorist attack on Oct. 7 that killed 1,400 in southern Israel, many of them civilians, women and children, calling it 'an unprecedented historic moment for the Palestinians of Gaza.' It added to critics of the violence that 'nothing else is working' so bloodshed would continue due to the situation.... A Jewish student was ... attacked with a stick after objecting to a woman tearing down posters of Hamas hostages." 

On the SJP's instagram page, the SJP and JVP described the October 7 attack, which specifically targeted Israeli women, children, and elderly and entailed kidnapping, rape, and mutilation, as "a counter-offensive against colonial settler oppressors."   The SJP explained  that they learned to celebrate violence against Israelis from Columbia professors, explaining: "As Columbia students, our classes regularly discuss the inevitability of resistance as part of the struggle for decolonization....oppressed peoples [need not] be 'perfect victims.'"

A group of Columbia Professors previously signed a letter asking the Columbia administration to protect anti-Israel protestors from public shaming and professional consequences for alleged anti-semitism.  The students had signed a letter that blamed Israeli policies for the October 7 attacks on Israeli civilians.  The faculty letter supporting the protestors drew criticism from a larger group of Columbia faculty, and from outside the university, for describing the October 7 attacks on Israeli civilians as a "military response [to] state violence from an occupying power" and as "just one salvo in an ongoing war."  (The only government that has described the October 7 attacks in a similar fashion is the Islamic Republic of Iran)

The Columbia counter letter stated: 

"There is no excuse for Hamas’s ... attack on Israeli civilians, which was [a] war crime. There is no justification for raping and murdering ordinary citizens in front of their families, mutilating babies, decapitating people, using automatic weapons and grenades to hunt down and murder young people at a music festival celebrating peace, burning families alive, kidnapping and taking hostages (including vulnerable populations of elderly, people with disabilities, and young children), parading women hostages in front of chanting crowds, and proudly documenting these nightmarish scenes on social media. We are horrified that anyone would celebrate these monstrous attacks or....try to “recontextualize” them as a “salvo,” as the "exercise of a right to resist" occupation, or as “military action.” ... the law of war clearly distinguishes between tragic but incidental civilian death and suffering, on one hand, and the deliberate targeting of civilians, on the other....We doubt anyone would try to justify this sort of atrocity if it were directed against the residents of a nation other than Israel."

The Columbia Chapter of Students for Justice in Palestine has specifically named several Jewish Columbia administrators whose policy choices it disliked, apparently encouraging protestors to harass them.

A Hamas leader has described the primary benefit of its attacks on Israeli civilians as generating anti-Israel protests in the United States and Europe.  He pledged that Hamas would launch more attacks.

The Anti-Defamation League describes Jewish Voices for Peace as:

"a radical anti-Israel and anti-Zionist activist group that advocates for the boycott of Israel and eradication of Zionism. The spread of JVP’s most inflammatory ideas can help give rise to antisemitism, and sometimes it has espoused classic antisemitic tropes itself.  For example, in May 2022 its national account posted a cartoon depicting Israeli soldiers joyously drinking the blood of dead Palestinians....JVP does not represent the mainstream Jewish community."

The New York Times reports additional actions by protestors on college campuses that could be construed as anti-Semitic harassment.  At the University of Texas, Palestinian Student protestors have complained that passersby called them "terrorists" and attempted to instigate a fight.

On Wednesday, the House Judiciary held hearings in which numerous witnesses testified about about anti-Semitic harassment on campus.  There were no witnesses at the hearing who came forward to defend universities' handling of the situation.

Guest Blogger: Michael Simkovic | Permalink