The writer Jon Ronson once observed that every day in the social-media era, “a new person emerges as a magnificent hero or a sickening villain. It’s all very sweeping.” In Ronson’s 2015 book, So You’ve Been Publicly Shamed, his subjects found themselves beset by angry detractors for, say, an insensitive Twitter joke or Facebook photo. They lost jobs, received threats, even pondered suicide. And they mostly retreated from view until the shame storm passed.
Today they might sue instead.
In January, a viral video of the high-school student Nick Sandmann at a protest march in Washington, D.C., appeared to some to show him smirking at a Native American elder. That triggered a wave of inordinate social-media hate and flawed journalism. Now the young man who was at the bottom of the pile-on is suing The Washington Post for $250 million, NBC for $275 million, and CNN for $275 million.
Last month, the author Natasha Tynes tweeted a photo of a Washington, D.C., Metro employee eating on a train in violation of the transit system’s policies. Defenses of the black employee and outrage against Tynes culminated in a statement that her publisher posted to Twitter asserting that she “did something truly horrible today” as “black women face a constant barrage of this kind of inappropriate behavior directed at them and a constant policing of their bodies.” It went on to declare that it would cancel her novel.
Now Tynes is suing her publisher, Rare Bird Lit, for more than $13 million, USA Today reports, “alleging the company defamed her and breached a publishing contract amid a social media shaming.”
These cases vary in the particulars, the degree of sympathy one might feel for the plaintiffs and defendants, and the strength of the legal claims. But all involve men and women who were publicly shamed and who are now trying to recover damages. The plaintiffs are betting that they can persuade a jury to side with them rather than their public shamers. They believe their antagonists belong to an umbrage-taking minority, not a majority enforcing a social consensus.
All may lose in court anyway.
The provocateur Milo Yiannopoulos dropped a lawsuit against Simon & Schuster, failing in his efforts to recover damages after the publisher canceled his memoir, Dangerous, amid public outcry over his behavior.
The creator of the “Shitty Media Men” list may be immune from liability for entries she did not create under Section 230 of the Communications Decency Act. The egregious mistreatment of Sandmann at the hands of many does not mean that any particular media organization libeled him or caused him damages totaling hundreds of millions of dollars. And Tynes’s publisher may manage to convince the courts that its contract gives it broad license to cancel book projects involving authors who take actions that stoke moral controversy.
But another multimillion-dollar lawsuit suggests that there is an appetite among some juries for awarding big damages when the plaintiff is perceived to have been treated badly in a public shaming.
On November 9, 2016, three black students at Oberlin College made a late-afternoon trip to Gibson’s Bakery, a small, family-owned business near campus that has been serving the community at its present location since 1905. Like countless undergraduates of all races, classes, genders, and generations, they hoped to leave with alcohol but weren’t yet of age to purchase it legally.
A fake ID was produced and rejected.
In the moments that followed, Allyn Gibson, the owner’s son, would try to keep the fake ID, pursue the male student who had used it as he fled to the back of the store, chase him into the street yelling “Shoplifter!,” and detain him, even as the other students, who were women, attempted to intervene on behalf of their friend. Soon, Oberlin police arrived and arrested the three undergraduates. A police report accused them of trying to shoplift two bottles of wine. Many classmates jumped to the conclusion that they’d been mistreated and launched protests almost immediately.
“Chants of ‘No justice, no peace’ reverberated across campus from early morning into late last night as hundreds of protesters lined West College Street, calling for a boycott of Gibson’s Bakery,” the student newspaper reported. “According to a flyer distributed by protesters, this incident was far from Gibson’s first instance of alleged racial bias.”
The same article quoted a black employee of the store who dismissed racism as a motive. “If you’re caught shoplifting, you’re going to end up getting arrested,” he said. “When you steal from the store, it doesn’t matter what color you are. You can be purple, blue, green; if you steal, you get caught, you get arrested.”
It is easy to understand why some college students would reflexively side with their peers, especially early on, as conflicting eyewitness accounts spread by hearsay across the small campus. The student government passed a resolution calling for the university to “cease all support, financial and otherwise,” of the bakery, which had a long-standing contract with Oberlin’s food-services vendor.
Later, when the male student was charged with felony robbery rather than shoplifting, even as his fake ID suggested at the very least that his initial intent had been to make a purchase, many at Oberlin perceived a miscarriage of justice and wondered whether race had played a role in the charging decision. That, too, is easy to understand.
If this was merely a matter of hasty student protests going too far before all the facts emerged, the eight-figure lawsuit would not have been warranted.
But the jury heard a story in which adults at Oberlin chose to fuel the mob’s excesses while pandering to its false narrative.
That the narrative was suspect should have been obvious almost immediately. Administrators were present at early legal hearings where the male student offered to plead guilty to misdemeanor theft, a plea deal that David Gibson, the bakery’s owner, explicitly approved. (A judge rejected the deal, citing student protests at Oberlin and the bad precedent that could result from the perception of reducing the charges under pressure. One of the student defendants would later remark that he appreciated the support of his classmates even though it probably hurt his case.)
Daniel McGraw, who covered the trial for Legal Insurrection, reported on an email that Emily Crawford, who worked in the school’s communications department, sent to her bosses, who forwarded it to other administrators. “I have talked to 15 townie friends who are poc (persons of color) and they are disgusted and embarrassed by the protest,” she warned. “In their view, the kid was breaking the law, period … To them this is not a race issue at all and they do not believe the Gibsons are racist. They believe the students have picked the wrong target … I find this misdirected rage very disturbing, and it’s only going to widen the gap (between) town and gown.”
He also reported on the response from Tita Reed, the special assistant to the president for community and government relations, who reacted to the news of local sentiment, “Doesn’t change a damn thing for me.”
The Gibson family’s lawsuit, set forth in a 33-page complaint, would give locals a lot more reason for anger at Oberlin and Meredith Raimondo, the special assistant to the president for equity, diversity, and inclusion. Among its allegations were the following:
Oberlin employees were among those who distributed a boycott flyer, and they allowed it to be copied for free on school machines. It declared without evidence that the bakery was a “racist establishment with a long account of racial profiling and discrimination” and called its behavior toward the three students who broke the law there “heinous.”
Reed, Raimondo, and some Oberlin professors “raised their fists in support of the demonstration,” with some of them “shouting the defamatory statements on a bullhorn, thereby assuring that a large audience would hear their defamatory statements.”
Credit was given to students who attended the protest in lieu of classes, and administrators bought them food to support them.
After that initial round of protests, Oberlin caved to student demands to cancel all its business with the bakery. Later, an Oberlin Police Department investigation, undertaken to probe accusations of racist behavior at the bakery, found that among 40 adults arrested for shoplifting at the business in a five-year period, six were black, suggesting vigilant enforcement against people of all races.
The lawsuit goes on to allege that when David Gibson sat down with administrators to tell them about the devastating effect that defamation, boycotts, demonstrations, and refusal to do business with Gibson’s were having on his family’s store, Oberlin administrators sought to negotiate special treatment for shoplifting students in exchange for resuming relations with the bakery.
The complaint described the meeting as follows:
Gibson requested that Oberlin College immediately retract the defamatory statements and reinstate its contracts … Defendants represented that they would consider reinstating business … but only if Gibson’s Bakery would agree that “Gibson’s would not push criminal charges against first-time shoplifters” … Gibson’s Bakery already loses thousands of dollars a year due to stolen merchandise, and such losses would certainly multiply if students learned they could steal without repercussion.
Time would only further undermine the proposition that the Oberlin students were innocents victimized by a racist local business. While pleading guilty to misdemeanor theft charges in August 2017, each of the students would declare in an official statement, “I believe the employees of Gibson’s actions were not racially motivated. They were merely trying to prevent an underage sale.”
And yet, the Gibsons’ lawsuit alleged, Oberlin students giving campus tours on behalf of the college advised prospective and future students and their families not to shop at Gibson’s Bakery because it was “racist” and “assaults students.” Various hits to the business ultimately caused it to lay off multiple employees, adding to the social injustice done by the misguided student activists and the Oberlin faculty and administrators who abetted their harmful efforts.
That is not to say that everyone at Oberlin was of like mind.
Almost a year after the incident, Roger Copeland, a professor emeritus of theater and dance, wrote a letter to the student newspaper lamenting, “It is now abundantly clear that the College’s boycott of Gibson’s was disingenuous and utterly unwarranted.” He criticized then–Oberlin President Marvin Krislov and Raimondo for a “rush to judgment” and actions that amounted “to a staggering, potentially bankrupting loss” to a small family business, and concluded with this biting critique:
The facts of this case are no longer in question. And yet, a counter-narrative has taken hold, one that refuses to allow mere “facts” to get in the way. It’s embarrassing when one has to ask Oberlin students the same question one asks climate-change deniers: At what point do you accept the empirical evidence, even if that means having to embrace an “inconvenient” truth? Alas, even those who concede that the defendants violated the law, continue—stubbornly—to insist that there is “plenty of blame to go around” and that “both sides” are at fault. Really? Isn’t that what Donald Trump said about Charlottesville?
The time has come for the Dean of Students, on behalf of the College, to apologize to the Gibson family for damaging not only their livelihood but something more precious and difficult to restore—their reputation and good standing in the community.
At trial, Raimondo was revealed to have sent a text reacting to Copeland’s letter that said, “Fuck him. I’d say unleash the students if I wasn’t convinced this needs to be put behind us.” To me, the metaphor suggests administrators who calculatingly wield some control over whether students activists are aggressive or restrained.
Another striking moment at trial came when Eddie Holoway, a black man who put himself through technical college decades ago while working at Gibson’s Bakery, spoke about what he regarded as a false narrative spread about his former employer. “He was accused of being something that I know he’s not, and that’s a racist,” Holoway testified. “In my life, I have been a marginalized person, so I know what it feels like to be called something that you know you’re not. I could feel his pain. I knew where he was coming from.”
Ultimately, jurors awarded the family $11 million in compensatory damages, and—on Thursday—an additional $33 million in punitive damages. It is likely the judge will reduce that latter figure to $22 million due to an Ohio cap on such awards.
After the eight-figure victory, David Gibson told a Legal Insurrection reporter, “I just want to let people know across the country that this can happen to anyone else, but we stayed and worked together as a family and fought against this. In many ways, what we wanted from Oberlin College the jury gave to us. They said we were not racists and that the college should have said so when all this started.”
An official statement released by the college expressed sharp disagreement with the outcome, asserting that neither Oberlin nor its administrators had defamed the bakery or its owners. “Rather, the College and Dr. Raimondo worked to ensure that students’ freedom of speech was protected and that the student demonstrations were safe and lawful, and they attempted to help the plaintiffs repair any harm caused by the student protests,” the statement reads. “Colleges cannot be held liable for the independent actions of their students. Institutions of higher education are obligated to protect freedom of speech on their campuses and respect their students’ decision to peacefully exercise their First Amendment rights.”
If colleges were held responsible for the independent speech and actions of student protesters, that would indeed have a chilling effect on free speech. This lawsuit may even inspire future litigation against colleges that chills protected speech, as plaintiffs seeking a similar payday attempt to target administrators for what students do on their own. But jurors in this case did not find Oberlin liable for the independent actions of students. And I think administrators displayed the most egregious behavior in this case, given that they ought to possess more wisdom than the most zealous undergraduates.
In a 1903 law-review article, the federal judge Van Vechten Veeder posited that an era’s approach to defamation could reveal a lot about how it valued competing goods. “Since the law of defamation professes to protect personal character and public institutions from destructive attacks, without sacrificing freedom of thought and the benefit of public discussion,” he wrote, “the estimate formed of the relative importance of these objects … would be an admirable measure of each culture, liberality, and practical ability of each age.”
Our era, defined in large part by the rise of social media, is exposing us to many more instances of possibly defamatory speech, with more frequency, prompting closer examination of long-standing norms. The conditions are ripe for cultural change. And jury verdicts in the next stretch of years will both reflect and drive it.
A plaintiff’s attorney in the Gibson case has long believed that it will play a part in that process. “Sometimes attitudes and actions of powerful institutions that spawn cases like this continue until the full array of personal and economic consequences of defamation are recognized,” he told The Weekly Standard last year. “Until recent national events, some say that our society and its powerful institutions have been slow to recognize the toll extracted by defamation.”
This week, the Gibson family’s legal team cast the jury’s decision as a tool to reform undue shamings nationwide. “Why is the country watching you? Because the country agrees that what happened to the Gibsons should not happen to anyone, but could happen to everyone,” the attorney Lee Plakas argued, according to the Legal Insurrection reporter who attended the trial. “Colleges are watching us and you. Because they all know the way colleges are run will be affected, and by your decisions, they will be.”
I celebrate the happy ending for the Gibsons, but not without some trepidation about the downsides of adjudicating culture-war fights or the proper administration of America’s colleges in court, where extreme cases can mean cathartic outcomes and bad law. It would be a shame if jurors intent on vindicating the wrongly maligned wound up severely chilling protected speech too.
This article is part of “The Speech Wars,” a project supported by the Charles Koch Foundation, the Reporters Committee for the Freedom of the Press, and the Fetzer Institute.
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