Board of Trustees Chair: “Left standing, the verdict could … set a troubling precedent for those institutions, like Oberlin, that are committed to respecting free speech”

Oberlin College just announced in an email blast that it not only is appealing the Gibson’s Bakery verdict, it has hired 1st Amendment litigators at the D.C. Office of a large national law firm to lead the appeal.

The email blast announcing the appeal was sent by Chris Canavan, Chair of the Oberlin College Board of Trustees. For most of the past decade Canavan also was Director, Global Policy Development, at Soros Fund Management, until leaving that position last month.

Canavan’s email stated:

Dear Oberlin Community, I’m writing to share with you this statement regarding the Board of Trustees’ decision to appeal the jury verdict in the litigation arising out of a student protest in 2016. We continue advancing Oberlin’s educational mission and the One Oberlin plan. Here is the link to the plan. It is designed to preserve what is special about Oberlin, channel the power of a residential liberal arts education in new ways, and build on the College’s standing as one of the world’s great institutions of higher education. I look forward to working with you on the One Oberlin initiative. Chris Canavan ’84

Chair of the Board of Trustees

Oberlin College

The Statement reads, in part:

Oberlin College’s Board of Trustees announced today that it voted to appeal the jury verdict that held it and the college’s Dean of Students liable for a protest organized independently by students. Attorneys representing the College filed a Notice of Appeal today appealing the case to the Ninth District Court of Appeals in Akron, Ohio. “The decision is grounded in the board’s fiduciary responsibility to the College’s long-term financial health,” said Board Chairman Chris Canavan. Left standing, the verdict could also set a troubling precedent for those institutions, like Oberlin, that are committed to respecting free speech, he said. The College will continue to support the Oberlin business community, Canavan said. The College has assembled an appellate legal team to take on the many dimensions of this case, he said. The team includes First Amendment attorneys Lee Levine and Seth Berlin from the Washington, D.C., office of the national law firm Ballard Spahr and appellate attorneys Benjamin Sassé and Irene Keyse-Walker from the Cleveland office of the national law firm Tucker Ellis. These attorneys will work with trial counsel from Taft Stettinius & Hollister of Cleveland and from Wickens Herzer Panza of Avon to address the intersection of defamation law, First Amendment principles, and Ohio tort reform doctrines this case raises. Levine has a national reputation as a leading First Amendment attorney and, during a career that spans four decades, has argued cases before the U.S. Supreme Court, has appeared in most federal appeals courts, and has written extensively on First Amendment and defamation law. Berlin has represented clients in First Amendment cases for more than 25 years and has argued cases in numerous federal trial and appeals courts and in state courts across the country. He is also an Adjunct Professor of First Amendment and Media Law at Georgetown University Law Center. “The verdict and judgment in this case set a precedent that endangers free speech on campuses and for all Americans,” Levine said. “The jury was allowed to award substantial damages for speech that is protected by the Constitution. The case should absolutely be reviewed by an appellate court.” Ben Sassé is the chair of an Appellate & Legal Issues group with a long history of taking on state and federal cases at the appellate level. He has successfully argued cases on a broad range of issues before the Ohio Supreme Court and is a regular speaker on Ohio Supreme Court cases and practice. Keyse-Walker has argued hundreds of state and federal appeals across the nation, with a focus on Ohio’s Supreme Court and 12 intermediate appellate courts. She was the first Ohio attorney to be elected to the American Academy of Appellate Lawyers and has written and spoken extensively on the development of an appellate practice. “This case never should have gone to the jury in light of the heightened speech protections in the Ohio Constitution, and the trial court made several procedural errors during trial that led to this verdict. Among other things, those errors prevented jurors from hearing critical information about the original incident,” Sassé said.

THIS POST WILL BE UPDATED

To recap, there were two verdicts: $11 million compensatory damages rendered on June 7, 2019, and $33 million in punitive damages rendered on June 13, 2019, after a separate punitive damages trial. The combined $44 million was reduced by the Court under Ohio’s tort caps to just over $25 million. The Court also awarded over $6.5 million in legal fees and costs against defendants on top of the damages. Defendants were required to post a $36 million bond to secure the judgment pending appeal.

Ever since the verdicts, Oberlin College has mounted an aggressive public relations campaign seeking to portray itself as the victim, asserting it was being unlawfully held liable for student speech. That narrative is not accurate, as we have pointed out several times:

It is clear that Oberlin College has settled on the claim that it is the defender of student free speech as a crisis management theme. We have explored many times why the assertion that the college was held liable for the speech of students is false. Oberlin College was held liable for the actions of its administrators, including the Senior Vice President and Dean of Students, in spreading the defamatory statements. The college may dispute the facts, but the legal theory of liability cannot be disputed. There is a separate legal issue as to whether the accusations against Gibson’s were defamatory or constitutionally protected opinion, but that has nothing to do with the erroneous vicarious liability narrative. Here is what the judge wrote in denying the defendants’ summary judgment motion, and allowing the libel claim to proceed to trial (Order here): [***] It’s clear that the theory of liability was not vicarious based on student or even faculty speech but was based on the actions of Raimondo and other administrators. There is nothing novel in a corporation being held liable for the actions of its employees, particularly senior employees and officers, acting within the scope of their employment….

The Jury Instruction on corporate liability focused on damages “caused by Oberlin College’s employees” (not students):

Respondeat Superior GENERAL. Plaintiffs seek damages from Oberlin College for injuries caused by the Oberlin College’s employees. An employer is liable for injuries caused by their employee while acting within the scope of employment…. In analyzing whether an employee’s actions constitute libel, intentional interference with business relationship, or intentional infliction of emotional distress you should apply the burden of proof and elements of those claims to the evidence presented of the employee’s actions.

Gibson’s Bakery also disputes Oberlin College public relations campaign claiming it was “held liable for the speech of its students”, releasing a detailed fact sheet.

(added)

Statement from Lee Plakas, Attorney for the Gibsons:

Given the repeated attempts by Oberlin College to discount the jury’s verdict, their decision to appeal comes as no surprise. But despite the college’s attempt to reframe this as a First Amendment issue, the law and the facts of this case remain clearly on the side of the Gibson family. The law and the jury’s verdict both remind our country that claimed free speech has its limits, even on a college campus. The jury’s verdict sent a clear message that institutions like Oberlin College should not be permitted to bully others while hiding behind the claimed shield of free speech. There are no exemptions from the law of defamation – a fact we trust will be confirmed during the appeal process.

[Featured Image: Allyn W. Gibson at trial][Photo credit Bob Perkoski for Legal Insurrection Foundation]



