Opinion: Jury verdict in libel case threatens free speech

Earlier this month, an Ohio jury awarded a whopping $44 million verdict in a libel case. Oddly, the defendant was not a newspaper or television station, but a college. And, odder still, the college did not make the statements at issue.

In November of 2016, a family employee of Gibson’s Bakery, a business near Oberlin College, accused a young African American male student of shoplifting. Their argument spilled into the street, where a struggle ensued involving the young man, two of his friends, and the employee. Police arrested the young man and his friends, who are black, but not the employee, who is white.

This incident occurred in the context of a national dialogue about police interactions with minorities, many of which ended tragically. For example, in July of that year a Minnesota police officer shot into Philando Castile’s stopped vehicle, killing him as his fiancée and her daughter watched. Video related to the shooting went viral.

Concerned Oberlin students organized a protest that was held the day after the altercation outside Gibson’s. In chants, flyers, and a student government resolution, the protestors accused the Gibson family of racism and discrimination. Months later, the three students who had been arrested in connection with the incident entered into a plea bargain and read a statement declaring that the Gibsons were not racist.

Gibson’s claimed that Oberlin was responsible for the protestors’ accusations. The case went to trial and the jury issued its massive award. Ohio law reduced it to about $25 million, but last week the judge added back in more than $6 million in attorney fees.

The verdict is dire news for everyone’s free speech rights.

Outsized libel verdicts like this can chill the exercise of First Amendment rights by institutions and individuals. They could easily persuade someone who wished to speak out on an important issue to stay home and shut up.

It wouldn’t matter that the person wanted to talk about a matter of significant public concern. The judge found the Oberlin students were doing just that.

The judge also held that the protestors’ chants were protected expressions of opinion. But he ruled that their flyers and resolution were not, a puzzling distinction. In each of these statements, the students were expressing a viewpoint based on limited information.

Most remarkably, though, the verdict punished Oberlin not for its own speech, but for that of the students. Borrowing a concept from criminal law, the judge instructed the jury that it could find liability if Oberlin had “aided and abetted” the protestors’ speech. He broadly defined this to include almost any form of support, assistance, encouragement, or cooperation.

Such an instruction made liability inevitable. That’s what colleges do—provide space and opportunity for students to express themselves. But this does not mean that the college endorses the speech or adopts the speech as its own.

If this ruling stands, everyone’s free speech rights will suffer. Anytime anyone encourages, supports, or in any way assists someone else in speaking, they will have aided and abetted them, perhaps to the tune of $44 million in liability. The concept has no logical limit.

Some conservative commentators have celebrated the Oberlin verdict. That’s ironic, given their recent complaints about the absence of free speech on campus.

It’s also sad. The First Amendment reflects such a core shared value that neither the left nor the right has ever had any special claim to its ownership. Its champions have included liberals, like Justice William Brennan, and conservatives, like Justice Antonin Scalia.

Free speech in this country died a little bit in Ohio this month. An appeal is likely, so perhaps mourning can wait. But those who are celebrating do not understand the grave risks that this ruling poses to the speech that they value. 

The Oberlin verdict did not just get things wrong. It stood the law on its head. After all, the Constitution itself expressly aids and abets speech.  We call that part the First Amendment.

Len Niehoff is a professor at the University of Michigan Law School and a practicing First Amendment lawyer. The views expressed are his own.