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 outer limits to freedom of expression, no different than ones for fraud, false advertising, and other malicious conduct that incidentally involves speech.
Two points @grellas mentioned are key.
First, this case involves falsehoods. Factually untrue assertions are generally outside the scope of protected speech: http://law2.umkc.edu/faculty/projects/ftrials/conlaw/lying.h.... (Otherwise, the first amendment would swallow claims for fraud, false advertising, etc). This case, moreover, doesn’t fit the scenarios where false statements can be protected expression, such as hyperbole or satire.
Second, the speech was against a private party. The first amendment restrictions on defamation claims are less stringent when it comes to private parties than to the government, politicians, or public figures. In particular, where defamatory speech turns out to be false, it might still be protected by the first amendment if it was directed to a public figure and the false statements were not made recklessly or knowingly. But if a private party is involved, that additional layer of protection doesn’t exist. (The theory being that there is a greater interest on making statements about public figures, where sometimes you might get the facts wrong, than with private figures.)
I’m a first amendment extremist, but a defamation claim here doesn’t strike me as problematic any more than a prosecution for fraud. There is no legitimate expressive value in spreading demonstrable falsehoods about a private party. Nor is there a slippery slope. The key elements of private party versus public figure, and demonstrably false versus possibly true statements are bright line limits that have long served us well.
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.
Thank you for being the first person to agree with my fundamental point that there are actual implications to the first amendment when it comes to libel laws.
I'd love to hear any of the actual false statements ISSUED BY THE UNIVERSITY OR ITS STAFF. I relied on the so far uncontested statement of facts offered by OP. If those facts are wrong I'd be thrilled to revisit my position.
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 know whether that was true. Numerous witnesses testified it was false.
A high ranking university employee handed out a flyer containing damaging assertions of fact, with the intent that people believe and act upon those assertions, and at trial offered nothing to suggest she had even a good faith belief that those assertions were true. That’s not an exercise of free expression.
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 issues far more than you do with people who are criticizing me for thinking the Constitution has any implications on libel law.
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 least colorably true. Had the university done so, it likely would have gotten off the hook. They could have, for example, pointed to a suspicious pattern of calling the police. The university didn’t even try to do that.
I think the law is correct here. It’s one thing to protect expression made in good faith that turns out to be wrong. That’s important to avoid chilling effects. It’s another thing entirely to protect expression where there is not even a good faith basis to believe that the allegations are true.
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.
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 chilling effects.
I agree with this strongly.
Edit: Also, I think, given you're a lawyer, you'd agree with me that a client of yours is on much safer ground when the thing they're accusing somebody of is about their general character rather than a crime. (Not that you'd have given your approval on the flyer with just that one claim struck out.)
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.
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 a willful disregard for truth, and I have a hard time believing that “they committed assault” would be defamation when “they got in a fight” is accurate.
For what it’s worth, I consider myself a liberal, and I went to a liberal arts college cut from the same cloth as Oberlin and wrote anonymous posts debating what I perceived as the excesses of liberal campus activists.
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.
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.
> Thank you for being the first person to agree with my fundamental point that there are actual implications to the first amendment when it comes to libel laws.
He's not the first - the reason I didn't bring it up in my reply was that I agree with it. Libel (and true threats, and incitement to imminent lawless action) absolutely are limits on the first amendment and free speech. They're limits I, even as a free speech advocate/extremist, happen to agree with, but they are limits.
It's funny. We're disagreeing so strongly here but we fundamentally are so much in closer position here than the people downvoting me and most of the folks disagreeing with me because I even brought up the First Amendment to begin with.
Two points @grellas mentioned are key.
First, this case involves falsehoods. Factually untrue assertions are generally outside the scope of protected speech: http://law2.umkc.edu/faculty/projects/ftrials/conlaw/lying.h.... (Otherwise, the first amendment would swallow claims for fraud, false advertising, etc). This case, moreover, doesn’t fit the scenarios where false statements can be protected expression, such as hyperbole or satire.
Second, the speech was against a private party. The first amendment restrictions on defamation claims are less stringent when it comes to private parties than to the government, politicians, or public figures. In particular, where defamatory speech turns out to be false, it might still be protected by the first amendment if it was directed to a public figure and the false statements were not made recklessly or knowingly. But if a private party is involved, that additional layer of protection doesn’t exist. (The theory being that there is a greater interest on making statements about public figures, where sometimes you might get the facts wrong, than with private figures.)
I’m a first amendment extremist, but a defamation claim here doesn’t strike me as problematic any more than a prosecution for fraud. There is no legitimate expressive value in spreading demonstrable falsehoods about a private party. Nor is there a slippery slope. The key elements of private party versus public figure, and demonstrably false versus possibly true statements are bright line limits that have long served us well.