In Oberlin Bakery Boycott Lawsuit, a Reminder About a Key First Amendment Right

Political boycotts are a form of free speech, writes Brennan Center Fellow Ciara Torres-Spelliscy.

September 10, 2019
bakery

Americans’ right to boycott a store or business for political reasons is protected by the First Amendment. But this precedent does not appear to have been followed by a local Ohio court that held Oberlin College liable for encouraging a boycott of a local bakery. The facts in the case are messy because there is a mix of clearly protected free speech as well as what the jury considered libelous statements against the business and two of its owners.

The trouble started in November 2016 the day after President Trump was elected. A Black Oberlin student named Jonathan Aladin was accused of trying to steal two bottles of wine from the Gibson Bakery near Oberlin’s campus in Ohio. The store clerk, who is also the owner’s son, then chased the student and got him in a chokehold. Aladin and two of his friends, who are also Black, joined in the altercation and were arrested.

The next day there were protests by Oberlin students against Gibson Bakery and accusations that the business was “racist.” Then there were multiple protests of Gibson at the college, including calls to boycott the business. Students at Oberlin asked the school to cancel business with the bakery, which it did.

A year after the original events, Gibson sued Oberlin and its dean of students. The jury ultimately sided with the bakery, and Oberlin was hit with a $25 million judgment. Among the awards for the Gibsons and their business were compensatory damages for the economic loss, libel, intentional infliction of emotional distress, and interference with business relations, as well as heavy punitive damages.

But regardless of how the case ended up, the fact remains that calling for a boycott is protected free speech under the Supreme Court’s 1982 ruling in NAACP v. Claiborne Hardware, which I wrote about in a chapter of my new book, Political Brands.

There are many parallels between Claiborne and what happened more recently at Oberlin. The Claiborne case arose out of a boycott that was started by African Americans in 1966 against local white-owned businesses in Claiborne County, Mississippi for alleged racism. The boycott, which was sometimes referred to as a “black out,” was encouraged by the NAACP and went on for years. During the boycott, the owners of these business lost out on sales and customers.

The white business owners in Mississippi did something similar to the owners of Gibson Bakery. They used the civil tort system to hold the Black boycotters, along with the NAACP, liable for their loss of business. This legal tactic worked in the local courts of Mississippi — just like it’s working in the state court in Ohio now. Even the Supreme Court of Mississippi was willing to hold the Black boycotters and the NAACP financially liable.

There was a point when the price tag for all of this was so large for the NAACP that the organization nearly went out of existence. But when the NAACP v. Claiborne case got to the U.S. Supreme Court, the justices rightly recognized that more than the loss of business was at stake. Also on the line were the First Amendment rights of African Americans to protest what they thought was unfair treatment by the white businesses in and around Claiborne County.

One of the Gibson Bakery’s key legal claims was that because it was not actually “racist,” it was libelous for students and administrators at Oberlin to accuse the bakery or its owners of being so. But First Amendment rights don’t typically turn on the correctness of the protester. For example, in the landmark 1964 case New York Times v. Sullivan, the Supreme Court held that a newspaper advertisement supportive of the civil rights movement riddled with errors was still protected First Amendment speech and not libelous.

It’s not clear what exactly influenced the Ohio jury to make the decision that it did. There is the David and Goliath aspect of a small bakery being pushed around by a comparatively large college. And there was a study of arrests in the store which showed that of the dozens of people arrested for shoplifting in the store in the past several years, only 15 percent were Black. Indeed, as Conor Friedersdorf of The Atlantic noted, this lawsuit isn’t the greatest test case since it looks like the bakery probably would have called the cops on any alleged shoplifter regardless of race. What’s unknown is whether the employee would have gotten so physical with a student who was not Black. So now the college is on the hook for a huge amount of money.

It’s questionable whether the bakery would win in a higher court if the First Amendment issues in the case were decided in a way that is consistent with controlling Supreme Court precedent. Indications are that Oberlin will appeal.

People who care about free speech and the right to boycott should keep an eye on this case. Far bigger businesses than the Gibson Bakery would surely like to chill criticism by using the threat of a lawsuit. After all, it would be an empty right to boycott if one could not communicate to others why the boycott is necessary.

The views expressed are the author's own and not necessarily those of the Brennan Center.

(Image: Dake Kang/AP)