This summer saw the resolutions of two high-profile civil lawsuits involving accusations of defamation and libel against two pillars of the media-academic complex. In the suit against hyper-liberal Oberlin College, Ohio state jurors rendered a judgment against their neighbor, the college. In the other case, a lawsuit against The Washington Post, the federal district-court judge prevented a jury from hearing the case by dismissing the complaint. Meanwhile, in a concurrence earlier this year, Supreme Court Justice Clarence Thomas comprehensively criticized the constitutional basis of the Court’s landmark defamation decision, New York Times v. Sullivan (1964).

Oberlin and Its Neighbors

In the trial of Oberlin College, an Ohio state jury on June 7 awarded an astounding $44 million judgment (later reduced by the court to $25 million) in libel against the college itself for falsely accusing a small business of racism. Despite the notoriety of the case, the factual details have not been widely reported.[1] Three black Oberlin students had gone to Gibson’s, a bakery and shop immediately adjacent to the Oberlin campus, to shoplift bottles of wine. Gibson’s was a regular target of shoplifters. Gibson’s owner caught one student with two bottles of wine under his clothes and stopped him, whereupon the student and his two accomplices assaulted him. The thief was charged with robbery and his companions with assault. The case was later resolved with pleas to lesser offenses.

Oberlin itself, not its students, organized a demonstration in front of Gibson’s in which racial accusations against Gibson’s were proclaimed with a bull horn. Oberlin staff who organized and participated in the demonstrations and related public statements included the dean of students; staff of the Department of Africana Studies which published a Facebook post that Gibson’s “dislike of Black people is palpable;” an assistant to the college president; and an associate dean. These officials composed, reproduced, and distributed flyers to students, faculty, the public, and the media that said that Gibson’s, a family business that has existed since 1885, was, inter alia, “a racist establishment with a long account of racial profiling and discrimination.” The college called off classes and supplied food for the demonstrations. The college announced that it was permanently ceasing to do any business with Gibson’s. The college then went on to offer that they would continue to do business with Gibson’s so long as Gibson’s agreed to “not push criminal charges against first-time shoplifters.”

Thus did Oberlin, the only major institution and economic force in the tiny town (population: 8,000) of Oberlin, Ohio, initiate and carry out a detailed plan to falsely accuse and shut down a completely innocent neighbor. The trial was conducted in the nearby county seat, which means that the jury pool possibly included citizens of the town of Oberlin.

The Face of the Case

With the recent district court dismissal of the $250 million defamation suit by a Kentucky teenager against The Washington Post, no jury will get a crack at the journalistic practices of The Washington Post. In a case that became a national (and even international) sensation emanating from the annual March for Life in Washington in January of this year, Kentucky teenage school boy Nicholas Sandmann (and fellow high school students) was maligned by the Post which accused him of initiating a racist confrontation with a professional Native American activist who was in the same area for his own public demonstration.

To the Post, its wildest stereotypes had suddenly appeared at its doorstep: bigoted, white, Trump supporter wearing a MAGA hat, Catholic student (at an all-male high school!), anti-abortion, and at the March for Life. The Post described what Mr. Sandmann allegedly did as sending “a ripple of fears and anger across the country.” In the Post’s and subsequent media’s and commentary’s perception and snap judgment, the case was summarized by the supposed “smirk” on the face of the student while standing face to face with the activist.

As for accurate “reporting,” the case against the student dissolved within three days, and it was shown that Mr. Sandmann’s behavior was exemplary and that the “victim” Native American activist had himself initiated the confrontation and then later lied about it. Even the Post in a follow-up “Editor’s note” admitted that Mr. Sandmann and his fellow students had not confronted or instigated a conflict with the activist. In Mr. Sandmann’s lawsuit for defamation against the Post, the question then became whether the Post’s initial coverage had met the legal definition of defamation, essentially a negligent false statement exposing a person to ridicule and disgrace. And whether a jury would be allowed by the district court to decide that question.

In his July decision, Kentucky federal district court judge Willliam Bertelsman decided that the Post’s articles were not enough about Nicholas Sandmann in particular to support his suit, that the content of the articles were opinions and not intentionally false statements, and that, therefore, he would take away the case from the jury and dismiss it.[2] Justice Bertelsman ruled that the Post’s coverage was about the group of students, not about Mr. Sandmann in particular. The judge engaged in meticulous dissections word-by-word of the Post’s articles but ignored the overall and clear (to everyone but the Post and the judge) effect of the texts of the articles in conjunction with the accompanying photos and videos.

Justice Bertelsman came to his conclusions despite the Post’s first article on the incident that referred to the photo and video of Mr. Sandmann “standing about a foot from the drummer’s face wearing a relentless smirk.”[3] Indeed, the Post itself essentially repudiated reportage by words in favor of reportage of the visual by opening the article with the sentence, “The images in a series of videos . . . showed a tense scene.” The smirk and “that guy in the hat” who acted along with the other students with “an aggressive display of physicality” was repeated in an article on the next day. And again in the next article: “a foot from the drummer’s face . . . wearing a relentless smirk . . . that guy in the hat . . . blocked my way.” That photo and video was basically the whole case. It certainly was in the massive piling-on by progressives nation-wide. It was the face of the case. Two additional Post articles then mentioned Nicholas Sandmann by name. One of the Post’s articles identified Mr. Sandmann as the “young man at the center of the video.” And another as “the student at the center of the confrontation.” Interestingly enough, the Post never backed off its coverage and said in its brief in court that its coverage was “substantially true.” Does that sound like something a jury should decide? In the face of this, the judge said that one of the Post’s articles made “a vague reference” to “teens.”

Justice Thomas Questions New York Times v. Sullivan

Mr. Sandmann sued as a “private figure,” thus avoiding the status of a public figure under New York Times v. Sullivan (1964) in which the Supreme Court jettisoned 500 years of Anglo-American libel law and made it “almost impossible,” as Justice White said in a post-Sullivan concurrence in Dun & Bradstreet v. Greenmoss (1985), for a public figure to sue for libel. Nonetheless, Judge Bertlesman went ahead and gratuitously gave the Post some Sullivan protection by quoting a passage from Milkovich v. Lorain Journal (1990) that “statements of opinion relating to matters of public concern” are constitutionally protected. By quoting that Milkovich passage, Judge Bertelsman obscured the fact that the case had strongly limited Sullivan and what defamation the media could get away with. The Milkovich Court held that there was not “a wholesale defamation exemption” for the media under Sullivan.

In a concurrence in February of this year to the Supreme Court’s decision not to hear a case concerning a claim of defamation by a Bill Cosby accuser against one of Mr. Cosby’s lawyers, Justice Clarence Thomas described Sullivan and its progenies as “policy driven decisions masquerading as constitutional law.”[4] The federal appeals court had ruled that the accuser had made herself into a “limited purpose public figure” in the Cosby case and therefore could not sue for defamation in the counter-attack against her by one of Mr. Cosby’s lawyers. Thus, did the appeals court recognize that people normally regarded as private persons could sometimes become “public” persons.

But Justice Thomas did not go beyond his usual thorough examination of constitutional history and meaning. It was The New York Times that was sued in Sullivan and, in fact, Sullivan dramatically increased the power and role of the media in society and gave them a constitutional basis for saying anything without compunction about public figures. And, it may be said, set the stage for the next increase in the role of mass communications in society, namely, internet-based media and social media.

Today, President Trump is called a “racist” every day in and by the media, and that accusation is now substantially extended to the entire Republican party. Beto O’Rourke was recently quoted as saying that Mr. Trump was racist “of course.”[5] Meanwhile, proposed new laws and policies about race are a major emphasis of the entire field of Democratic presidential candidates. And the seemingly chief activity of the Southern Poverty Law Center, a child of Sullivan, has long been to accuse others of being “hate groups.”

In the end, with Justice Thomas’ attempt to undermine the society-changing Sullivan case, will we see more Oberlin-type verdicts, the kind of verdict that almost assuredly would have been the same in the Post case if the jury had been allowed to rule?

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[1] Gibson, et al v. Oberlin, et al. No. 17CV193761. Court of Common Pleas of Lorain County, Ohio. 7 November 2017.

[2] Sandmann v. The Washington Post. No. 2:19-00019. United States District Court for the Eastern District of Kentucky Northern Division at Covington. 26 July 2019.

[3] Wootson Jr., Cleve R., Antonio Olivo, and Joe Heim. ” ‘It was getting ugly’: Native American drummer speaks on his encounter with MAGA-hat-wearing teens.” The Washington Post, 22 January 2019.

[4] McKee v. Cosby. No. 17-1542. Supreme Court of the United States. 19 February 2019.

[5] Glueck, Katie and Matt Stevens. ” ‘Of Course He’s Racist’: 2020 Democrats Criticize Trump After Shootings.” The New York Times, 5 August 2019.

Editor’s Note: The featured image is a detail from “Calumny of Apelles” (c. 1496) by Sandro Botticelli (1445-1510), courtesy of Wikimedia Commons.

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