On the Oberlin/Gibson's lawsuit: social facts versus legal facts

(Or: would Bari Weiss please shut up already?)

I’m an Oberlin College alum. I attended Oberlin from September 1997-May 2002. Oberlin is a very small town — “Downtown Oberlin” spans only a couple blocks. When I lived in Oberlin, it included a campus bookstore, a couple restaurants, a five and dime store, a video store, a hardware store, a bar, and a family-owned bakery. Gibson’s bakery. You may have heard of it.

Here’s a social fact from my time at Oberlin: Gibson’s was low-key racist.

I don’t recall who first told me that the Gibson family and their employees racially profile and harass black student customers. There wasn’t a big, dramatic story in the local paper. No one had accused Gibsons of anything or demanded change. Terms like “microaggressions” didn’t really exist back then, so we didn’t have a language for describing what was going on. But it was common knowledge, passed from student to student — a thing you heard from your black friends, or you heard someone mention one of their friends told them. It shaped social behavior in the same way you might hear about that professor who leers at female students or that house whose off-campus parties you should avoid. It was widely believed during my years residing in Oberlin, Ohio that the local bakery gives black student patrons a hard time.

In November 2016, there was an altercation between Allyn Gibson, who was working the register at his family bakery, and a black Oberlin student. The student had swiped two bottles of wine and tried to pay for a third with a fake ID. Gibson chased the kid across the street, they got into a fight, and the police showed up and took the student away. A couple of the student’s friends got involved, and were arrested as well.

This was just after Trump’s election, and the liberal campus climate was extremely tense. Oberlin students decided to protest Gibson’s Bakery. They handed out fliers that said Gibson’s Bakery had a “LONG ACCOUNT of RACIAL PROFILING and DISCRIMINATION.” The students used a campus copier to make some of these fliers. College administrators attended the protest and tried to lower the temperature, following protocols laid out in the faculty handbook for how administrators should manage off-campus protests. Students also called for a boycott of Gibson’s Bakery, and the college briefly paused its pastry order while trying to manage the whole mess.

(As a scholar of political protests, I’ll interject here that this isn’t a great moment to seize. Even if Allyn Gibson racially profiled the student and initiated the ensuing brawl — which student protestors claimed, and the Gibson family disputes — it’s just not great to call for a boycott of the local bakery after they caught someone shoplifting. You can probably find an instigating event that offer greater moral clarity. But I also don’t think it rates among the top 10 most-absurd political protests I’ve seen on a college campus.)

Anyway, the Gibson family decided to sue Oberlin College for the defamatory speech of the student protestors. The students had used a college printer, and college officials (following their handbook) were present at the protest. And, though statements like “I believe Gibson’s is racist” are opinions, and cannot be defamatory, statements like “Gibson’s Bakery has a long account of racial profiling and discrimination” are factual claims, so they can be defamatory.

Gibson’s Bakery became a cause celebre for MAGAland conservatives and the “cancel culture” grievance industrial complex. Bari Weiss, Jonathan Turley, and their hackish fellow travelers have treated as an icon of wokeness run amok — the poor, defenseless local baker whose business was unfairly destroyed by students who label at with the Scarlet R, a reputational wound that one can simply never recover from. A rural Ohio jury found in favor of Gibson’s bakery, slapping Oberlin with a $36.59 million penalty. Oberlin appealed the verdict, but the appeals have been unsuccessful.

I’ve always thought this lawsuit was ridiculous, setting a dangerous precedent that could stifle campus free speech. If colleges and universities can be held liable for poorly-phrased student speech at political protests, then colleges and universities are going to have to heavily regulate student political speech. This is the type of case that actual free speech crusaders ought to be outraged by. Instead, free speech grifters have spent years high-fiving over Oberlin’s misfortune.

(Sure, in an ideal world, the protestors would have phrased their fliers in opinion-language rather than fact-language. But these are student protestors; they do not have first amendment lawyers on retainer. And protest speech ought not be limited to people who have immediate access to pre-publication review.)

At trial, Oberlin was asked to provide evidence of the bakery’s “long account of racial profiling and discrimination.” And the college could not do so, because it was an established social fact, rather than a legal fact.

The claims that Gibson’s discriminated against black students had never been formally documented. They were just rumors, based in collective lived experiences, that persisted over the course of DECADES. For better or worse, Gibson’s Bakery developed and sustained a decades-long reputation among the Oberlin student body for being low-key racist against their black student patrons. Maybe this was based in a misunderstanding that grew from nothing and magically sustained itself for decades through the rumor mill. (Sure, I guess that’s technically possible.)

Social facts of this sort are not particularly compelling in a court of law. Put an alum like me on the witness stand and they could tell you “uh, yeah, I remember hearing that black students got mean looks every time they went in the store. I don’t know where that came from, but that was definitely something people have believed for a long time.”

But that doesn’t make these social facts any less real. I would be surprised if word of this reputation never reached members of the Gibson family. Generations of black Oberlin students believed the bakery was racially profiling and harassing them. They talked to their friends about it. It was a status quo that the local bakery never attempted to address.

The student protests didn’t harm the angelic Gibson family’s reputation by painting them with a scarlet “R.” The business already had that reputation. It was an established social fact — fairly or unfairly — that spanned decades.

And then, against the backdrop of the anti-”wokeness” crusades, the local bakers managed to leverage a poorly-phrased student protest flier into a $36 million payday from the college.

That’s an awful lot of money for the tiny grocer where I used to buy cereal, milk, donuts that were kinda stale IIRC, and $3 bottles of wine. Enough money, I think, that we can stop treating them like the aggrieved victims.

But I sense that Bari Weiss and her woke-grievance-industry peers are never going to let this go. They are determined to turn the Oberlin-Gibsons dispute into a symbol of woke university administrators run amok, attacking defenseless white people rather than standing up against the progressive student-mob.

So here’s the message I would really like to leave with Bari and co:

Keep my alma mater’s name out of your mouth.

The 2016 Gibson’s protest was sloppy. Student protests are often sloppy. You aren’t much of a defender of campus free speech if you demand otherwise. And the accusation of racial profiling didn’t materialize out of thin air. It was a longstanding social fact, shaping interactions between Oberlin students and the local bakery for decades. It’s the type of context that a real journalist could easily pick up on, but grievance-Substackers like Bari can never quite notice.

Enjoy the payday, Gibson family. And please go away.