Oberlin is an extreme case, even among other small, liberal arts colleges.
No. Evergreen is the extreme case. https://www.seattletimes.com/opinion/editorials/the-evergree...
I said “an” extreme case. Take it easy, Francis.
Oberlin College case shows how universities are losing their way
181–190 of 198 posts
Re: Oberlin College case shows how universities are losing their way
#182Earlier quoted context omitted.
What about false accusations of pedophilia? Why is one kind of falsehood protected and another not? I think what you’re really concerned about is when people, in good faith, level an accusation of racism or racial profiling that turns out to be debatable or wrong. They shouldn’t be prosecuted. But that’s not what happened here. It’s not a high hurdle to show that an accusation of racism or racial profiling is not at…
I deleted my first reply because I think you're being disingenuous with this comparison. I think a better comparison is if I call someone a liar when speaking broadly about the person. Even if they have a documented history of telling the truth and I don't have a single lie, I think that's protected. > It’s one thing to protect expression made in good faith that turns out to be wrong. That’s important to avoid chilli…
The Oberlin dean didn’t just say the bakery was “racist,” she said they had a “long history of racial profiling.” That’s a critical distinction. The first amendment doesn’t directly protect falsehoods. But to give wide berth for free expression, we have carved out all these situations where even a false assertion will be protected: parody, hyperbole, opinions, assertions made based on good faith investigation, etc. If the Oberlin dean had, for example, said the bakery was racist, based on the fact that the bakery failed to consider that calling the police on a black student would subject the student to far graver consequences than under identical circumstances where the student was white, that would arguably be a non-falsifiable opinion, or a statement about someone’s “general character.”
But she went beyond expressing an arguable opinion. Saying that someone has “a long history racial profiling” is an assertion that a pattern of concrete events have taken place. It’s not an assertion about someone’s “general character.” It’s falsifiable. Moreover, the dean couldn’t even construct a fig leaf, some post hoc rationalization, to defend that assertion. She all but admitted she had tried to destroy someone’s business based on the equivalent of a “fake news” Facebook post.
Re: Oberlin College case shows how universities are losing their way
#183Earlier quoted context omitted.
Of course, but when you use your position of authority (as a professor would have) as a bully pulpit, to have a call to action (like boycott), it can be argued that damages are justified. I'm actually very pro free speech, and I think the damages in this case are egregious, but there was very much a call to action from a very influential person on a group of people who had limited capabilities (though, not legally, m…
> The precedent is more similar to yelling fire in a crowded movie theater and being responsible for the outcome rather than voicing your political opinions in a town square A closer precedent would be yelling "this sucks!" in a crowded theater of a film that in fact is quite good and then calling for people to boycott it on that faulty basis. Mostly joking with this example, but it kinda gets to where we disagree to…
Again, you’re missing how exceedingly narrow a defamation claim must be, and how the Oberlin dean threaded the needle tightly to fit into the requirements.
A defamation claim must be premised on a (stated or unstated) false assertion of fact. Pure opinions are not covered: http://www.dmlp.org/legal-guide/opinion-and-fair-comment-pri.... Whether a movie is good or bad is a pure opinion—it cannot be falsified and cannot be the basis of a defamation claim. Arguably, whether someone is racist is an opinion too, although on the flip side it generally carries the connotation that the conclusion is based on actual conduct and can be considered an assertion about these (unstated) facts.
But whether someone has a “long history of racial profiling,” as the Oberlin dean asserted, is a factual assertion about past events. It’s falsifiable, and was proven false at trial.
Re: Oberlin College case shows how universities are losing their way
#184Earlier quoted context omitted.
A university dean admitted to passing out a flyer that falsely stated that the Oberlin student had been assaulted: https://legalinsurrection.com/2019/05/gibsons-bakery-v-oberl... . A police officer testified that the Oberlin students had assaulted the bakery employee, not the other way around. The flyer also stated that the bakery had a long history of racial profiling. But at trial the dean admitted that she didn’t…
Whether someone is a victim of assault or rightfully practiced self-defense is often a difficult question dependent on the states of mind of the people involved in a volatile situation, remembered through the veil of faulty human memories. Details like who used force first are pretty much impossible to determine without a video recording. Of course, police officers are as fallible as anyone else. Defamation requires…
There was no allegation that the Oberlin student acted in self-defense. As to the guilty plea, there are indeed lots of people who plead guilty to crimes they did not commit. It’s a country of 300 million people—in absolute terms, there are lots of people who do any given thing. But in percentage terms, any given guilty plea is likely the result of overwhelming evidence of guilt.
Re: Oberlin College case shows how universities are losing their way
#185Earlier quoted context omitted.
>I don't think simply calling somebody "racist" should EVER be libel. Even when inaccurate. So, what is your definition for libel? As it doesn't appear to be the same one in common usage. I am massively in favour of free speech, but I suspect even Voltaire would want some method of restitution to be available should people be spreading lies about him around town.
> spreading lies about him around town Whether something is libel and unprotected would obviously depend on the lie. We seem to agree about that so I'm not sure what you're claiming I believe.
I actually think that it depends pretty much completely on the context. There is no list of phrases that are innocent or malicious in and of themselves. Something that can seem innoccuous in most situations can be a matter of life or death in others. So no, I don't think we seem to agree. And could you answer the question rather than dancing around it?
Re: Oberlin College case shows how universities are losing their way
#186Earlier quoted context omitted.
Yeah, this clearly was the case here!! Although even Oberlin does not seem to be making that claim.
I don't know if you caught that. But for me, "they pled guilty!" is meaningless. People are coerced into that all the time. So speaking generally, to those who think saying that is shorthand for winning an argument, it's quite silly.
In general it may not mean much. People do plead guilty even when they aren't, for many reasons, and even more so with minorities. In this specific case though we're talking Oberlin students, not some poor kids from the ghetto, already making this less likely, and even worse, while I would not necessarily expect rioting progressive students to make any sort of logical and factual argument, I would expect better from the administration. But interestingly, they also never presented anything based on logic, let alone facts, and never even made the claim that the assailants were coerced to plead guilty, witnesses bribed, investigations botched. They just took the narrative that fits with their ideological view and ran away with it, facts be damned.
Re: Oberlin College case shows how universities are losing their way
#187A bit more factual context: 1. The student "protests" erupted the day after the 2016 election results came in, with a corresponding politically inflammatory element at work in the background. 2. The underlying incident involved an underaged black student who attempted to buy a bottle of wine, was refused, and was then found to have 2 other bottles under his coat as he walked out. When the owner's son chased him out,…
This is a great summary, and I broadly agree with Jacobsen's take, but also took the time to read the primary source documents that he and others linked to. So, some finesse points:
2-3: I don't know that it's been well established that the student who sparked this incident and later pled out to shoplifting went into the store with the intent to steal. The other narrative presented is that he went in with a fake ID (so clearly had purchasing intent), the ID was spotted, the clerk attempted to confiscate it, and that's when things blew up. It appears undisputed that the student fled the store and was chased by Allyn Gibson, unfortunately resulting in Gibson getting beat down by the student and two friends --- the result was a felony robbery charge, at which point the student had immense incentive to plead out to anything the court would allow him to.
4: It's useful to know that there's a history of problematic interactions between Oberlin (the school) and the Oberlin Police (an unrelated department of the town in which Oberlin resides). That OPD felt the need to escalate a situation isn't dispositive. What we do seem to know is that, excepting an early incident where protesters entered Gibsons Bakery to protest indoors (and then left), the protests were not violent.
7: Oberlin didn't have a contract with Gibsons. They asked their cafeteria supplier to stop sourcing from Gibsons.
12: It's worth pointing out that the college didn't merely take the position that it had done nothing wrong, but also repeatedly in its own legal filings affirmatively supported the protesters claims --- apparently false --- that Allyn Gibson had "violently assaults" an "unarmed student".
Finally: I too have found Legal Insurrection's coverage of this case valuable, but anyone reading it should go in knowing that unlike Turley, L.I. is not "liberal", but rather full-throated conservative. It's always good to keep the agendas of news sources in mind, and that of course goes for L.I. the same way it would for DailyKos or PopeHat.
I think if Oberlin had been smart enough to redirect protest energy towards the Oberlin Police rather than to a private business, this all would have worked out better (and also, not for nothing, have been more just). As it stands, though, I'm shocked Raimondo still has a job; Oberlin's handling of the case was far more clownish than one could perceive from this summary.
Re: Oberlin College case shows how universities are losing their way
#188Earlier quoted context omitted.
Thanks for this. I hadn't dug deeply into this previously. Reading this, I'm struck by how fragile our first amendment is that you can be sued for participating in a protest. It sounds like the only things that the university did "wrong" was end a contract and also one of their deans took active part in protesting. Much of the glee seems to stem from the fact that the speech being expressed in the protest was dumb. I…
Defamation has long been deemed to be speech not protected by the first amendment. Because of the risk to freedom of expression, such claims have been limited in numerous ways, and are exceedingly difficult to win. But where a plaintiff does manage to overcome those hurdles, it is not an indicator of the fragility of the first amendment for the defamation claim to actually succeed. It’s simply applying well defined o…
The page you've cited here appears to claim the opposite of what you're claiming, itself citing multiple cases in which the Supreme Court found factually untrue statements firmly inside the scope of protected speech. The counterexamples you're providing are motivated untrue assertions in which speech is part of a broader pattern of action (in these cases, to unjustly enrich the speaker; in others, to unjustly damage someone disfavored by the speaker).
Not that I disagree at all with what you're saying about defamation! But the idea that lies are unprotected speech seems like a very dangerous slippery slope. Like, Singapore would claim to support "free speech" with that (gigantic) exception.
Re: Oberlin College case shows how universities are losing their way
#189Earlier quoted context omitted.
The assault (a crime!) claim on the flier is REALLY bad for the college. It makes me feel much better about the ruling, as much as I still disagree it's with a LOT less force now. (False accusations of racism or racial profiling, on the other hand, should absolutely be protected.) Edit: One thing I'd add. Even though our positions on this individual case are in opposition, we actually agree about the First Amendment…
What about false accusations of pedophilia? Why is one kind of falsehood protected and another not? I think what you’re really concerned about is when people, in good faith, level an accusation of racism or racial profiling that turns out to be debatable or wrong. They shouldn’t be prosecuted. But that’s not what happened here. It’s not a high hurdle to show that an accusation of racism or racial profiling is not at…
An accusation of pedophilia is unprotected because accusations of crime are considered, at law, to be intrinsically damaging. Racism (and, to some extent, racial profiling) is not against the law: I believe it's perfectly legal to stop only black shoppers for shoplifting, for instance (so long as they're actually shoplifting), even though 60+% of shoplifters in Oberlin appear not to be black.
Here, I wonder whether it's not the speech that got the university in trouble so much as the concerted and diligent effort to harm Gibson's business through multiple means.
Re: Oberlin College case shows how universities are losing their way
#190Earlier quoted context omitted.
What about calling someone a pedophile? Should that also not be libel? And before you claim it's different because being a pedophile is a crime - it's not a crime. Acting on it is. Just how being racist isn't a crime, but refusing to serve customers based on race is.
What about "jerk?" Should that be libel if there's no evidence the person is a jerk?
There can't be, because "jerk" is a subjective assessment, and defamation requires a statement of fact. The "falsifiability" rubric Rayiner has been using is helpful. I'm not a lawyer, but I read lots of defamation lawyers, and note that you can further extend the requirements for defamation:
* It's (apparently, in many circumstances, consult lawyer) not defamation to relate your interpretation of facts already on the record. In other words, it's often not defamation if you're simply wrong about something, so long as you're not relating your wrongness in a manner that would lead a reasonable person to think you're authoritative for your claim. "Based on a bunch of stuff I read in the paper, Gibson's has a history of racial profiling" might be a much safer thing to say than "as faculty and administrators of Oberlin College I'm informing you that Gibson's has a history of racial profiling".
* If the injured party is a "public figure", you have to do more than prove a falsifiable false statement that causes actual injury; you also have to prove malicious intent, meaning that the speaker knows that what they're saying is false, and is saying it specifically in order to harm someone.