[NATIONALREVIEW] First, while the facts of the case were egregious, they were not unique. In the Oberlin case, students accused the plaintiffs ‐ owners of Gibson’s Food Market and Bakery ‐ of racism and racial profiling after police arrested three students for attempting to steal wine and then physically attacking an employee who tried to stop the theft. The students later pled guilty to multiple criminal counts.Students immediately launched protests of the bakery and created and disseminated flyers declaring the bakery "a RACIST establishment with a LONG ACCOUNT of RACIAL PROFILING and DISCRIMINATION," and that a member of the Oberlin community "was assaulted" by its owner. These claims were false. The evidence at trial showed that employees and administrators helped publish and distribute the false flyer, including by disseminating it to the media. The college also suspended its business relationship with the bakery.
Anyone who’s spent any time dealing with campus controversies knows that activist administrators often help, support, and even direct the activities of radical students. Some administrators seem to view campus activism as part of the educational process itself, a rite of passage that helps prepare them for a lifetime of political engagement. In my litigation days, I’ve seen multiple instances where administrators help activists formulate messages, plan protests, and provide university resources to favored activists.
When activists are engaged in constitutionally protected speech, there is absolutely no legal problem with this kind of university engagement. When, however, student activists are spreading outright lies and violating the law, university engagement becomes extraordinarily risky.
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Second, the size of the jury award will create a legal market for litigation. There’s a relatively simple reason why campus free-speech codes proliferated well before there was a concerted legal counterattack ‐ money. It takes money to sue universities, and First Amendment cases simply don’t yield eye-popping jury awards. It took the creation of large networks of nonprofit, pro-bono lawyers to turn the free-speech tide on campus.
Common-law torts are different. Plaintiffs can receive real compensation, and universities have deep pockets. In a radio interview yesterday, I compared the verdict to the kind of sound that causes prairie dogs to stand alert ‐ suddenly, lawyers are paying attention:
It is true that vexatious defamation suits can be used to punish lawful speakers, but many states have erected statutory guardrails to protect defendants against frivolous litigation. In addition, the First Amendment properly provides extremely robust protection for speech directed at public figures such as politicians, celebrities, and journalists. The fact remains, however, that outrage campaigns are often built on lies, and that when adults irresponsibly or maliciously spread those lies, the law has long provided a remedy.
Critics are already decrying the "chilling effect" of the Oberlin verdict. To the extent that the verdict causes activist administrators to pause and consider the underlying veracity and merit of the public campaigns they’re asked to join, then this is one chilling effect that may well do some good.