Recently, Defending Rights & Dissent filed an amicus brief urging the Ohio Supreme Court to take up Gibson’s Bakery v. Oberlin College. It’s a messy case with far-reaching implications for student speech. If allowed to stand, the lower court’s ruling could chill speech and promote censorship. If private colleges can be sued for their students’ speech, they might choose to simply suppress controversial ideas. In this article, we’re covering the facts of the case and why it matters to the future of free speech.

Controversy in Oberlin

In 2016, a Black Oberlin College student attempted to use a fake ID to purchase alcohol at Gibson’s Bakery, a long-standing local business in Oberlin, Ohio. Allegedly, the store employee spotted additional bottles of wine tucked into the student’s coat. The employee pursued the student into the street, where the student, employee, and several of the student’s friends got into a scuffle. Oberlin police arrived at the scene and arrested the three undergraduates involved. The next day, Oberlin College students began protesting Gibson’s Bakery, alleging that the incident took place within a longer history of racial profiling and discrimination. (The bakery had never faced a legal challenge for discrimination. In the five years previous, six out of the forty people arrested for shoplifting at Gibson’s bakery were Black.) The incident in question occurred in the immediate aftermath of the 2016 election and emotion, along with attention to racial issues, was running high. 150-200 students demonstrated outside Gibson’s Bakery.

The three undergraduates involved eventually pleaded guilty. As a condition of a plea deal that kept them out of jail, they signed statements saying that the incident was not racially motivated.

The situation is a complicated one. But the answers to the questions Gibson’s Bakery had a pattern of racism, or whether the protests were merited, matter far less than what happened next. 

Gibson’s Bakery sued Oberlin College. The lawsuit alleged that Oberlin College played a role in defaming the bakery because Oberlin employees spoke at protests, gave credit to students who skipped classes to attend the demonstrations, reimbursed students for refreshments and gloves purchased for protestors, and allowed students to use university photocopiers for free. The protests were controversial, both among townspeople and Oberlin employees. But what came next is far more clear cut: the lawsuit was decided in a way that endangered student speech. Courts held Oberlin College responsible for defaming Gibson’s Bakery. Oberlin College was ordered to pay $11 million in compensatory damages, $33 million (later reduced to $25 million) in punitive damages, and $6.5 million in reimbursement for legal fees. 

Out of a muddled situation has arisen a key legal question: should private colleges be held responsible for student speech? The ramifications of this case are potentially far reaching.

Speech at risk

Here’s where the free speech battle comes into play. The case might be messy, but the impact upon student speech is clear.

Here’s why:  If left to stand, the lower court incentivizes colleges to suppress student speech. As a private college, Oberlin is not bound by the First Amendment. Like most private liberal arts colleges, Oberlin prides itself upon being a haven of academic freedom, open dialogue, and free expression. Legally speaking, Oberlin is required by contract to deliver to its students what it advertises. But there’s no constitutional issue with a private college changing its priorities. While the Supreme Court has repeatedly recognized the importance of student speech across all universities, ultimately Oberlin is only bound by the promises made in its advertising – not by the First Amendment. Making Oberlin pay for its students’ speech to the tune of  $42 million dollars is a pretty strong incentive for Oberlin to avoid such promises in the future. This endangers student speech. 

The issue of whether the students were right to protest the bakery is beside the point. The value of the First Amendment lies in its defense of conversation, contention, and controversy. Protecting only speech on settled matters defeats the purpose of the marketplace of ideas laid out by our constitution. The amicus brief we filed notes:

“The United States Supreme Court has long recognized the First Amendment protects free expression in the form of speech, association, and academic inquiry at colleges and universities. But those protections are not limited to cautiously measured or gracious words only. Instead, controversial speech and disputed opinions on matters of public concern—like whether a local business discriminates against students—plays a necessary role in our national debate on fundamental issues.”

Ultimately, it doesn’t matter whether or not the students protesting the bakery were out of line. There’s an important discussion to be had about what constitutes racist behavior. Contextualizing individual experience within broader systems of power is an inexact science. In the wake of the 2016 election, conversations about white supremacy came to the forefront, especially at Oberlin College, which has a particular history of being at the vanguard of civil rights activism. Society benefits from the ongoing interrogation of what constitutes racial profiling and discrimination. Understanding where the default background of white supremacy surfaces in everyday life is a noble mission. Maybe in this case the conversation indeed eclipsed fact. But it’s First Amendment principles that allow everyday people to decide for themselves.

But holding Oberlin College legally accountable for student speech circumvents this process. This ruling incentivizes colleges like Oberlin to draw quick conclusions and to steer its students away from controversy and interrogation of broader systems of power. Fearful of a lawsuit, colleges might be inclined to penalize students with controversial opinions, either through disciplinary powers or through withholding college resources. Holding Oberlin College responsible for student speech on the basis of pizza and printers encourages colleges to be wary of lending support, no matter how slight, for any speech deemed likely to incite controversy and argument.