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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

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.